Ane17 v Minister for Immigration
[2017] FCCA 2145
•5 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANE17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2145 |
| 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.5, 5J, 36, 65, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF |
| Cases cited: ACX15 v Minister For Immigration & Anor [2017] FCCA 1392 SZTAL v Minister for Immigration [2017] HCA 34 Tran v Minister for Immigration [2004] FCAFC 297 |
| Applicant: | ANE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 367 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 5 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms N Johnson of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
The operation of these orders is suspended for a period of seven days.
The parties have liberty to apply within seven days in respect of any issue arising out of the judgment of the High Court in SZTAL v Minister for Immigration, expected to be handed down tomorrow.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 367 of 2017
| ANE17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 16 January 2017. The Authority affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts concerning the applicant’s claims for protection and the decisions of the Minister’s delegate and the Authority on them are set out in the Minister’s outline of legal submissions.
The applicant is a citizen of Sri Lanka who arrived in Australia by boat as an unauthorised maritime arrival on 26 October 2012.[1] He participated in an entry interview on 29 January 2013[2] and briefly set out his reasons for departing Sri Lanka.[3]
[1] Court Book (CB) 57, 85
[2] CB 1-13
[3] CB 9
The applicant lodged an application for a Safe Haven Enterprise visa (SHEV) on 4 April 2016[4] and set out his claims for protection in a written statement dated 30 March 2016.[5] The applicant claimed he was a Tamil and a Hindu who was born in Ampari District in Sri Lanka on 14 September 1991 and moved to Colombo for work in 2010. The applicant claimed that in 2004 his mother, sister and brother were killed in a tsunami. He lived in a refugee camp for one year from January 2005 and then went to live with his grandmother and brother. Between 2010 and 2012, the applicant lived in Colombo and worked in a supermarket.
[4] CB 20-56
[5] CB 57-61
In August 2012, the applicant returned to his home village in Ampari District to vote in an election. After leaving the polling station, the applicant and his friends were approached by some men who demanded they go back and vote again but this time for a candidate called Pillayan. The applicant and his friends refused; a fight ensued; the applicant’s friend was stabbed; and the applicant ran away fearing for his life. He remained in hiding at his friend’s house but Pillayan’s associates came looking for him at his home. His grandmother told them he was not there. The applicant feared harm from these men so he made arrangements to travel out of Sri Lanka and departed in October 2012. He claimed Pillayan’s associates returned twice to his grandmother’s house looking for him but have not returned since then. The applicant claimed to fear harm from Pillayan’s associates and as a Tamil from the Eastern Province who departed Sri Lanka illegally and would return as a failed asylum seeker.
In support, the applicant provided the Minister’s Department with copies of his identity card[6] and his birth certificate.[7] He also provided copies of his family relief chart,[8] his birth certificate,[9] death certificates for family members[10] and a Complaint Regarding the Tsunami Disaster on 26 December 2004.[11]
[6] CB 62-63
[7] CB 64-65
[8] CB 71
[9] CB 72, 77
[10] CB 73-76
[11] CB 78
The delegate
On 11 August 2016, the applicant was invited to attend an interview with the delegate,[12] and attended the interview on 1 September 2016.[13] The delegate provided a brief summary of what occurred at the interview.[14]
[12] CB 79-81
[13] CB 88
[14] CB 88-92
In a decision dated 27 September 2016, the delegate made a decision to refuse to grant the applicant a SHEV.[15] The delegate found the applicant was a credible witness who had provided a generally consistent account of his experiences,[16] and accepted most of his claims. However, on the basis of its assessment of the applicant’s claims and evidence and relevant country information, the delegate was not satisfied the applicant faced a real chance of serious harm or a real risk of significant harm on return to Sri Lanka.[17]
[15] CB 85-101
[16] CB 88
[17] CB 98-100
The Authority’s decision
The matter was referred to the Authority on 4 October 2016[18] and on 16 January 2017, the Authority affirmed the delegate’s decision to refuse to grant the applicant a SHEV.[19]
[18] CB 103
[19] CB 114-126
The Authority noted that no further information was obtained or received and accurately summarised the applicant’s claims.[20] The Authority was satisfied of the applicant’s claimed identity as a Hindu Tamil male from Kalmunai, Ampara District, Eastern Province and that Sri Lanka was the receiving country.[21]
[20] CB 115 at [3]-[4]
[21] CB 116 at [7]
The Authority summarised the applicant’s evidence at the SHEV interview, including his responses to questions put to him by the delegate about how he knew his protagonists were associated with Pillayan and why they would still be looking for him four years after the 2012 elections.[22]
[22] CB 116-117 at [8]-[12]
The Authority also noted country information concerning Pillayan that, amongst other things, indicated: he was initially the deputy of the Karuna party; he set up his own party in 2007; and he lost his contested seat in 2012. The country information also indicated paramilitary operatives and armed men under the direction of Pillayan intimidated and threatened voters for the Tamil National Alliance (TNA) but Pillayan was arrested on 6 November 2015 for murder and still remained in custody.[23] The Authority also noted that the delegate[24] had informed the applicant that the country information indicated Pillayan had lost power in 2012 and his party’s ability to influence the Eastern Province had decreased.[25]
[23] CB 117 at [13]-[14]
[24] at CB 97
[25] CB 117 at [15]
As the applicant’s protection claims had been consistent since his arrival in Australia and there was support for them in the country information, the Authority accepted that the applicant was involved in an altercation for refusing to make an illegal vote, his friend was stabbed and the applicant fled the scene.[26]
[26] CB 117 at [16]
However, the Authority identified inconsistencies in the information the applicant gave at the SHEV interview and in his written claims concerning when Pillayan’s associates allegedly came looking for him. Given the inconsistencies, the Authority was not satisfied Pillayan’s associates came looking for the applicant at his grandmother’s house after the incident or after his departure, and was not satisfied the applicant was of any interest to Pillayan’s associates when he departed Sri Lanka or currently.[27]
[27] CB 117 at [17]
Given its assessment of the country information about Pillayan’s arrest, continued detention and diminished influence, the Authority was not satisfied the applicant would be of any interest to Pillayan or his associates on his return for not agreeing to place an illegal vote and did not accept the applicant would face the same issue at the next election as he had claimed. It was not satisfied the applicant faced a real chance of harm on this basis now or in the reasonably foreseeable future.[28]
[28] CB 117-118 at [18]
The Authority accepted that the applicant was a Tamil from the Eastern Province and accepted his evidence that he had never had any interactions or problems with the authorities while residing in Sri Lanka and had never been questioned or faced any harm from anyone on this basis.[29] The Authority referred to country information, including a 2015 DFAT report and the 2012 UNHCR guidelines, that indicated:[30]
a)there were no official laws or policies that discriminated on the basis of ethnicity or language;
b)forced registration of Tamils had ceased;
c)the trend of monitoring and harassment of Tamils had eased and further decreased under the Sirisena government;
d)Tamils were no longer listed as a risk profile based on their ethnicity; and
e)the security situation in the north and the east had improved since the end of the conflict.
[29] CB 118 at [19]-[21]
[30] CB 118 at [22]-[24]
The Authority[31] expressly noted that aspects of the country information in this regard had been put to the applicant at his SHEV interview, which finds support in the delegate’s decision record.[32]
[31] at CB 119 at [25]
[32] CB 93-95
The Authority noted the applicant had not claimed to have a real or perceived association with the LTTE and it accepted that he did not. It accepted he would be questioned on his return based on his illegal departure but was not satisfied he would face any harm on the basis of being a Tamil from the Eastern Province.[33]
[33] CB 119 at [26]
The Authority also accepted the applicant would be returning as a failed Tamil asylum seeker who had departed Sri Lanka illegally[34] but referred to the 2015 DFAT report (which the delegate had also relied upon) about the processes for returnees. This report indicated, amongst other things, that all returnees were treated according to standard procedures regardless of ethnicity or religion, detainees were not mistreated, and no returnee who was merely a passenger on a people smuggling venture received a custodial sentence.[35]
[34] CB 119 at [27]
[35] CB 119 at [28]-[30]
The Authority accepted the applicant would be charged under the Immigrants & Emigrants Act 1949 (Immigrants & Emigrants Act) and held in detention for a brief period of time in prison conditions that did not meet international standards but it did not accept this amounted to serious harm.[36] It also found that the applicant would be required to pay a fine or released on his own personal surety, and would not be subject to a custodial sentence, but may be held in detention for a short period and questioned. It did not accept this constituted serious harm.[37] The Authority found on the basis of country information that the Immigrants & Emigrants Act would not be applied in a discriminatory manner, was a generally applicable law and treatment under its provisions therefore did not constitute persecution under s.5J(4) of the Migration Act 1958 (Cth) (Migration Act).[38] As it did not accept the applicant was of adverse interest to the authorities, the Authority did not accept he had a risk profile requiring monitoring. As the applicant had no imputed or actual connection to the LTTE, it was not satisfied the authorities would pursue the applicant once he returned to his home area. The Authority was not satisfied the applicant had a well-founded fear as a failed Tamil asylum seeker who departed Sri Lanka illegally, or that his Tamil ethnicity, originating from the Eastern Province and/or the incident with Pillayan’s associates, when considered either individually or cumulatively, enhanced the treatment the applicant would receive from the authorities on his return.[39] The Authority was not satisfied the applicant met the refugee criterion.[40]
[36] CB 119-120 at [31]
[37] CB 120 at [32]
[38] CB 120 at [33]
[39] CB 120 at [34]-[35]
[40] CB 120 at [36]
As the Authority was not satisfied the applicant faced a real chance of harm due to the 2012 incident with Pillayan’s associates or during future elections, and as the real chance test was the same as the real risk test,[41] the Authority was also not satisfied the applicant faced a real risk of significant harm on this basis.[42] For similar, reasons the Authority was not satisfied the applicant faced a real risk of significant harm as a Tamil from the Eastern Province or as a returning Tamil asylum seeker.[43]
[41] Minister for Immigration v SZQRB (2013) 210 FCR 505 at [246]
[42] CB 121 at [39]
[43] CB 121 at [40]-[41]
Whilst accepting the applicant departed Sri Lanka illegally, would be subject to processing under the Immigrants & Emigrants Act on return and be charged, fined, held in detention for a short period or released on his own surety, the Authority was not satisfied this amounted to significant harm. The Authority found on the basis of country information that the risk of torture or mistreatment whilst being processed was low. The Authority was also not satisfied that being held briefly in overcrowded prison conditions with poor sanitation and a lack of resources amounted to the death penalty, arbitrary deprivation of life or torture or that such harm would be intentionally inflicted. Nor was the Authority satisfied there was “an intention to inflict pain or suffering that was cruel or inhuman in nature, severe pain or suffering or cause extreme humiliation”.[44]
[44] CB 121 at [42]
Finally, the Authority was not satisfied that being required to pay a fine, being held in detention for a short period or the treatment he would receive under the Immigrants & Emigrants Act, whether considered individually or cumulatively, amounted to significant harm under s.36(2A) and s.5 of the Migration Act.[45] The Authority was therefore not satisfied that the applicant met the complementary protection criterion.[46]
[45] CB 122 at [43]
[46] CB 122 at [45]
For these reasons, the Authority was not satisfied the applicant met the criteria for the grant of a protection visa in either s.36(2)(a) or s.36(2)(aa) of the Migration Act.[47]
[47] CB 122 at [43]-[45]
The present proceedings
These proceedings began with a show cause application filed on 9 February 2017. The applicant continues to rely upon that application. There are two particularised grounds in that application:
Ground-1
The IAA has committed jurisdictional error in my case. It has declined its jurisdiction in my case as it has failed to make a finding/proper evaluation, as the IAA is required by law, on my central refugee claims although I have submitted reliable evidence to substantiate my central refugee claims: They are:
I fear returning to Sri Lanka as I will be harmed by Pillayan's associates.
I fear harm because I am a Tamil from the Eastern Province of Sri Lanka who departed Sri Lanka illegally and I will be returning as a failed asylum seeker.
Ground-2
When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me for an interview/invitation to comment on, or respond to the adverse information on which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments relating to the issues and relied on this to refuse my protection visa in relation to my referred application with the IAA.
I indicated to the IAA that I was willing to provide further evidence to substantive my refugee claims being reviewed by the IAA.
I will provide further grounds and the particulars of these grounds in my Amended Application when it is required by this court.
The application is supported by a short affidavit filed with it, which I have received. I also have before me as evidence the court book filed on 29 May 2017.
Only the Minister prepared written submissions in accordance with procedural orders made by a Registrar.
I invited oral submissions from the applicant today after explaining to him the legal issues associated with his grounds of review. He sought an adjournment for the purpose of obtaining legal advice. I declined that application on the basis that the applicant has had more than six months to arrange for representation, and he had not previously sought any variation of the Registrar’s procedural orders.
The applicant was not able to articulate any legal issues relating to the Authority’s decision. With the benefit of the growing body of court authority concerning the procedures of the Authority, I can see no arguable case of jurisdictional error. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.
Ground 1
In the first ground the applicant states the Authority “failed to make a finding/ proper evaluation” of the applicant’s “central refugee claims”, even though he had “submitted reliable evidence to substantiate” his claims and repeats his key claims of harm. This ground essentially contends the Authority ought to have come to a different factual conclusion based on the material before it. Such complaint goes no further than an impermissible invitation for the Court to review the merits of the Authority’s decision.[48]
[48] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272
Ground 2
In Ground 2, the applicant complains that the Authority erred by not inviting him to an interview or to comment on, or respond to, adverse information that was relied on to refuse his protection visa application. He erroneously contends the Authority was required to invite him to provide his comments in writing and to appear in order to give evidence and present arguments. He claims he indicated to the Authority that he was “willing to provide further evidence” to substantiate his claims.
There is no evidence to support the applicant’s assertions in this ground. Nor does the applicant even identify what adverse information he contends the Authority was required to invite him to comment upon or respond to.
In any event, the applicant’s complaints in ground two misconceive the review function of the Authority and the accompanying statutory regime governing fast-track reviews. The applicant’s fast track review was subject to s.473DA and the applicant was not owed common law procedural fairness in respect of the fair hearing rule.[49] The limited nature of the scheme or review conducted by the Authority was recently affirmed by the Federal Court.[50] Further, s.473DB(1) compels the Authority, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the Authority under s.473CB “without accepting or requesting new information”. Section 473DC(1) specifies that the Authority may, subject to Part 7AA, “get any documents or information (new information)” that “were not before the Minister when the Minister made the decision under section 65” and “the Authority considers may be relevant”. However, s.473DC(2) confirms the discretionary nature of the power in subsection (1) by stating the 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”. Further, s.473DD specifies that new information must not be considered unless the Authority is satisfied that exceptional circumstances exist, the information could not have been provided to the Minister and is credible personal information which was not previously known.
[49] AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12]
[50] DBE16 v Minister for Immigration [2017] FCA 942
An obligation on the Authority to provide particulars of any new information to the applicant under s.473DE only arises if the new information has been or is to be considered by the Authority under s.473DD and would be the reason or part of the reason for affirming the fast track reviewable decision. Such obligation does not apply to classes of information specified in s.473DE(3). As the Authority in the present case did not receive or obtain any new information,[51] there was no obligation to put particulars of any information to the applicant under s.473DC, s.473DE or s.473DF. Accordingly, no breach of Part 7AA Division 3 is demonstrated and Ground 2 must fail.
[51] see: CB 115 at [3]
The applicant also states in his application that he will “provide further grounds” and particulars in an amended application when required by the Court. This statement of intent fails to disclose an arguable case of jurisdictional error by the Authority and the applicant has not availed himself of this opportunity.
I also agree with the following additional observations made on behalf of the Minister.
The Authority comprehensively considered the applicant’s claims against the refugee and complementary protection criteria but did not accept that he faced a real chance of serious or significant harm. The Authority’s findings of fact about the credibility of the applicant and his claims were open to it on the available materials and for the reasons it gave,, and the Court cannot review the merits of the Authority’s decision.[52] It is a matter for the Authority to identify such material as it finds relevant to its reasoning and to give that material appropriate weight.[53] Similarly, the choice and assessment of the weight to be given to the country information was also a factual matter for the Authority,[54] and the Court cannot review the merits of the Authority’s decision.[55]
[52] Minister for Immigration v Wu Shan Liang ibid.,
[53] Tran v Minister for Immigration [2004] FCAFC 297 at [5]
[54] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]
[55] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
There is no jurisdictional error in the Authority referring to its findings of fact in relation to an applicant’s refugee claims when assessing their claims under the complementary protection provisions.[56] The Authority also did not err by importing exclusively refugee reasoning into its assessment of the applicant’s claims under complementary protection. To the extent that the Authority may be said to have relied on a construction of any of the forms of significant harm as contemplated in s.36(2A) of the Migration Act requiring an actual, subjective intention, it was correct to do so.[57] The Minister notes the decision of the Full Court in SZTAL is subject to a currently reserved appeal in the High Court heard on 5 April 2017 (proceedings (S272/2016 and S273/2016) but the decision of the Full Court remains binding on this Court[58] and the Court must apply the law as it presently stands.[59]
[56] SZSGA v Minister for Immigration [2013] FCA 774 at [54]-[56]; MZYXS v Minister for Immigration [2013] FCA 614 at [31]
[57] SZTAL v Minister for Immigration [2016] FCAFC 69
[58] MZARX v Minister for Immigration & Anor [2016] FCCA 3446 at [17]
[59] ACX15 v Minister For Immigration & Anor [2017] FCCA 1392 at [4]
No error, let alone any jurisdictional error, is identified or apparent in the Authority’s decision or the procedures it adopted. I find that the application fails to disclose an arguable case of jurisdictional error by the Authority.
I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). I will, however, suspend the operation of that order and any order as to costs for seven days. This is because I understand that the High Court is due to hand down its decision in SZTAL v Minister for Immigration tomorrow. I do not rule out the possibility that that decision may have some impact on this case, although, on the facts of this case, any such impact is likely to be marginal. The parties will have liberty to apply within seven days in relation to any issue arising out of the High Court’s judgment.[60]
[60] The High Court dismissed the appeal: see SZTAL v Minister for Immigration [2017] HCA 34
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 7 September 2017
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