Ant17 v Minister for Immigration

[2019] FCCA 954

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANT17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 954

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority considered new information in the context of s.473CD and s.473DD of Migration Act 1958 (Cth) – whether the Immigration Assessment Authority considered essential integers of the applicant’s claims – whether the findings and conclusions of the Immigration Assessment Authority were open to it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473DD

Cases cited:

MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996)

185 CLR 259

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

First Applicant: ANT17

Second Applicant: ANW17

Third Applicant: ANY17

Fourth Applicant: ANZ17

Fifth Applicant: AOB17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number:   SYG 390 of 2017

Judgment of: Judge Emmett

Hearing date: 10 April 2019

Date of Last Submission: 10 April 2019

Delivered at: Sydney

Delivered on: 10 April 2019

REPRESENTATION

Solicitors for the Applicant: Mr Stephen Hodges
(Stephen Hodges Solicitor)

Solicitors for the Respondents: Ms Katherine Hooper
(Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 390 of 2017

ANT17

First Applicant

ANW17

Second Applicant

ANY17

Third Applicant

ANZ17

Fourth Applicant

AOB17

Fifth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 20 January 2017 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 5 December 2016 refusing the applicants Safe Haven Enterprise (Class XE) (Subclass 790) visas (“SHEV”).

2. The applicants are a family unit comprising of a husband and wife, two daughters and a son. The first and second named applicants are husband and wife respectively and are the parents of the third, fourth and fifth named applicants. The first, second, third and fourth named applicants are Citizens of Sri Lanka. The fifth named applicant was born in Australia as an “unregistered overseas born Sri Lankan” and claims not to be a citizen of any country. The first named applicant is of Tamil ethnicity and of Roman Catholic faith.

3. The first named applicant (“the Applicant”) claims to have been imputed with having Liberation Tigers of Tamil Eelam (“LTTE”) links and fears harm from the Karuna Group (also known as Tamil Makkal Viduthalai Pulikal (“the TMVP”), the Sri Lankan Navy and government authorities. The second named applicant claims to fear harm on the basis of the Applicant’s claims. The third, fourth and fifth applicants did not advance any of their own claims and rely on the claims of the Applicant and the second applicant.

4. The Applicant was represented before this Court by his solicitor, Stephen Hodges.

5. Mr Stephen Hodges sought to rely on the Amended Application filed on 2 April 2017. The Amended Application withdraw reliance on grounds 2, 3 and 4 of the initiating application but proposed a new ground, being ground 6. The grounds relied upon are as follows:

   “Ground 1

   The IAA failed to consider all of the reasons provided by the applicant and impediments the applicant faced during the course of the preparation of his SHEV application which was prepared with the assistance of a legal advisor over a 6 week period which had an adverse effect on the applicant, which caused him to withhold important information regarding his involvement in the LTTE.

   Particulars

   a. Though the applicant may have had the opportunity to advance the claim that he assisted the LTTE intelligence [8] for reasons outlined in his statement dated 19 December 2016 [5] the applicant claimed he had difficulties in expressing his opinion freely and fully [8].

   b. The applicant stated he had presented himself “for the interviews for 6 weeks”.

   c. The applicant stated that “during these interviews there was a Sinhalese young lady present in the room and was taking down notes in her computer”. The applicant stated that “Under these circumstances I was afraid for my safety and had difficulties in expressing my opinion freely and fully with proper interpretation”.

   d. Though the IAA did consider that having a “Sinhalese person present for the interview may have been intimidating for some Tamil applicants, particularly in the light of the claim that he assisted in providing intelligence to the LTTE …” the IAA did not appear to accept this reason for not raising the claim that the applicant himself assisted the LTTE, as the applicant “did not constrain him from revealing that his cousin had an association with the LTTE …”

   e. Contrary to the IAA's assertion the Sinhalese person was present for more than one interview which were conducted over a 6 week period.

   f. Contrary to the IAA's assertion that the applicant did not specify his cousin's rank within the LTTE [8] the applicant in his written statement dated 1 August 2016 at paragraph 46, did indicate that his cousin was suspected of being a higher official in the LTTE.

   g. The IAA erred in its reasoning, as the fact that the applicant did not constrain himself from revealing that his cousin had an association with the LTTE but did constrain himself from revealing his own involvement with the LTTE in the presence of the Sinhalese person during several interviews could not be a reason to not consider that the applicant did not have difficulties in expressing his opinion freely and fully as stated in his statement dated 19 December 2016 which the AAT did appear to consider to some extent [8].

   h. Though the applicant may not have claimed that he felt “constrained at the SHEV interview nor expressed any concerns about the interpreter or the interpreting at that interview” [9] it cannot be inferred that the applicant “had an opportunity to advance this claim to the Minister” during the SHEV interview [9]. The fact that the applicant did not advance claims about his involvement in the LTTE in his written claims, remained an impediment even during the SHEV interview.

   Ground 5

   The Authority committed jurisdictional error by failing to consider essential integers of the applicant’s claim.

   Particulars

   a. In his Arrival Interview, the applicant noted that his ‘Alias’ was “Rajan”.

   b. At paragraph 3 of his Statutory Declaration dated 1 August 2016, the applicant stated that “… I was also known by the name “Ranjan”.

   c. At paragraph 22 of his Statutory Declaration dated 1 August 2016, the applicant stated the following:

   “...my friend and colleague Sivagnanasundarm Rajanthan ("Ranjan") were going back home on Ranjan's motorcycle. Usually, Ranjan rode the motorcycle and I rode behind. However, on this day Ranjan had a hand injury from doing farm work and I was riding the motorcycle and Ranjan was riding behind. While I was riding, I noticed that an auto (three-wheeled vehicle) was following us. Suddenly I heard a gunshot and noticed that Ranjan had been shot and had fallen off the motorcycle.”

   d. At paragraph 40, the Authority stated that “it is speculation on the applicant's behalf that he was the intended victim of the shooting in which his friend was killed”.

   e. The Authority failed to consider all of the components and integers of the claim that was raised, when making a finding at paragraph 40 that the applicant speculated that he was the intended victim.

   Ground 6

   The Authority committed jurisdictional error in the manner in which it dealt with new information sought to be relied on by the applicant.

   Particulars

   a. The Authority referred to a statement dated 19 December 2016 which the Applicant urged the Authority to consider.

   b. The Authority refused to consider the statement [par 8]

   c. In rejecting the new information, the Authority did not comply with the requirements of section 473DD of the Act;

   d. The Authority gave no consideration to the issue of “exceptional circumstances” and based its decision on only the reasons for late submission of the material.

   (Emphasis in original)

6. Having regard to the late introduction of ground 6 in circumstances where the Applicant had been directed on 10 May 2017 to file any Amended Application by 22 June 2017 and the fact that no submissions were filed in support of that ground; and, after giving Mr Hodges an opportunity to speak briefly to the ground, leave was refused. Mr Hodges referred the Court to the relevant passages of the Authority’s decision record that he submitted supported ground 6. On the face of the argument, I was not persuaded that the ground had sufficient prospects of success such that the interests of justice would demand that leave should be granted at this late stage to allow the Applicant to rely on that ground.

7. The background, the Applicant’s claims and the decision of the Authority are accurately summarised in the written submissions of the applicant as follows:

   “4. The first applicant is a male born in the Trincomalee District in the Eastern Province of Sri Lanka.

   5. The applicant arrived in Australia without a valid visa by boat on 21 November 2012 and applied for a Safe Haven Enterprise Visa (SHEV) on 17 August 2016.

   6. The delegate of the first respondent refused to grant the visa to the applicant on 5 December 2016.

   7. The delegate's decision was referred to the Authority for review. The Authority affirmed the delegate's decision and refused grant the applicant a visa on 20 January 2017.

   The applicant's claims

   8. The applicant's claims include the following:

   8.1. The first applicant's cousin was suspected of being an LTTE operative and was linked to the its intelligence arm. He went missing in 2007 and has not been seen since.

   8.2. In February 2017, the first applicant was kidnapped by members of the Karuna Group and was detained and tortured for three days.

   8.3. In May 2008, a navy ship was sunk by the LTTE in Trincomalee Harbour. During this time, the applicant worked as a stevedore at the port of Trincomalee Harbour.

   8.4. On 14 June 2008, the applicant was riding a motorbike with his friend who he regularly travelled to work with. The applicant's friend, who was sitting behind him, was shot and killed. Normally, the applicant would be sitting on the back but on this occasion he was not.

   8.5. Navy officials visited the applicant's home in search of him. On 22 July 2008, the navy went to his home and threatened his sisters unless he returned. When the applicant returned to his home, he was questioned about the shooting, his cousin and his plans to leave Sri Lanka. On this occasion, the officials also confiscated several documents, the applicant's passport and his mobile telephone. The items were returned to the applicant three days later and the applicant was told not to leave Sri Lanka.

   8.6. The first and second applicants travelled to India on 10 August 2008.

   8.7. On the next day, the Navy abused the first applicant's sister when she told him that the first applicant had gone to India.

   8.8. The first and second applicants returned to Sri Lanka in 2010.

   8.9. The first applicant applied to return to his job at the port at Trincomalee. During the interview, the applicant was asked about his reason for leaving Sri Lanka. The applicant claims that the investigators were obstructing his return to the port so he found work elsewhere.

   8.10. In 2012, the Navy began telephoning the applicant and asking about his reasons for leaving Sri Lanka and his cousin's whereabouts. On one occasion, unknown men visited and searched the applicant's home while he was at work.

   8.11. Five days after the applicants left Sri Lanka, the Navy visited their home.

   The decision of the Authority

   9. The Authority considered the applicant's claims and made findings which included the following:

   9.1. The Authority accepted, as plausible, that the first applicant's cousin was associated with the LTTE and had been missing since 2007.

   9.2. The Authority accepted, on the basis of country information, that the first applicant was kidnapped by members of the Karuna Group in 2007 and questioned about his cousin and tortured by them and the navy.

   9.3. The Authority accepted that the first applicant worked at the port in Trincomalee where a navy ship was sunk in 2008 and that security was heightened following this incident.

   9.4. Although the Authority accepted that the applicant was riding a motorbike with his friend who was shot and killed, it was not satisfied that the Navy was interested in the applicant beyond his status as a witness.

   9.5. The Authority was not convinced that the applicant was in fear of further attack and stayed with his friends to avoid being killed by the attackers.

   9.6. The Authority was not satisfied that the Navy visited the applicant's family home on 22 July 2008 or any other date after his departure.

   9.7. Although the Authority accepted that the applicant was not able to return to his place of employment in 2010, it did not consider it was for the reasons the applicant claimed.

   9.8. The Authority accepted that there was a resurgence of suspicion of Tamils by authorities in 2012.”

   (Citations omitted)

Ground 1

1. Ground 1 asserts that the Applicant faced impediments during the course of his SHEV application. These included that the SHEV application was prepared with the assistance of a legal adviser over a 6 week period and that during the interviews, a Sinhalese female was present.

2. Mr Hodges submitted that the Authority failed to consider cautions and reservations expressed by authorities in relation to arrival interviews. Mr Hodges submitted that the Authority’s error in failing to consider the relevant cautions and reservations had an adverse effect on the Applicant which caused him to withhold important evidence regarding his involvement with the LTTE.

3. In support, Mr Hodges referred to MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 [56] (“MZZJO”) where the Full Court of the Federal Court stated as follows:

   “56. On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.”

4. In particular, the Applicant contends that these circumstances prevented the Applicant from the opportunity of introducing new information not previously provided to the Minister, to the effect that the Applicant had assisted his LTTE involved cousin to obtain information for the LTTE; and that he used his access to the High Security Zone at the Port to take his cousin into the area and help him photograph strategic locations and make copies of drawings.

5. The Authority accepted that this was new information. The Authority also noted that the Applicant was critical of the service provided by the pro-bono legal adviser and stated that he had not provided this information earlier as he felt constrained when relating his claims to the adviser. The Authority also noted that the Applicant stated that he had been interviewed by a trainee rather than the legal adviser and that a trainee Sinhalese person was also present, as well as a Singaporean interpreter where there were language differences in accent and nuance.

6. The Authority noted that it must not consider any new information from an Applicant unless it was satisfied there are exceptional circumstances, and the new information was not and could not have been provided to the Minister, or was credible personal information which was not previously known and had it been known may have affected the consideration of the Applicant’s claims.

7. The Authority was not satisfied that the Applicant had not had an opportunity to advance these new claims to the Minister. The Authority did not accept that the Applicant had difficulties in expressing his opinion freely and fully. The Authority accepted that having a Singhalese person present at the interview may have been intimidating for some Tamil applicants (particularly in light of the Applicant’s claim that he assisted in providing assistance to the LTTE) but found that this did not constrain the Applicant from revealing that his cousin was associated with the LTTE.

8. Further, the Authority noted that the Applicant’s statement of claims in support of the SHEV application was detailed and comprehensive. The Authority was not satisfied that the interpreter’s different accent and language nuance would have impeded the Applicant in advancing these claims.

9. The Authority went on to consider that even if the Applicant had not advanced these claims at his SHEV application due to his stated concerns, the Delegate had advised both applicants of the importance of putting all claims forward and had cautioned that there may not be a further opportunity to do so. The Authority also noted that at the end of the interviews, the applicants were asked by the Delegate if there were any problems or claims that they had not talked about and both applicants had responded, No.

10. In the circumstances, the Authority was satisfied that the Applicant had had an opportunity to advance the new information to the Minister and was not satisfied that any exceptional circumstances existed to justify admitting the new information.

11. Accordingly, the Authority did not have regard to that new information.

12. It is clear from the Authority’s reasons that it considered the new information provided by the applicant in light of the legislative scheme in s.473DC and s.473DD of the Act and in the context of the Applicant’s explanations for his failure to provide the new information earlier.

13. The findings made by the Authority were open to it on the evidence and material before it and for the reasons it gave. The Authority’s reasons were probative of the relevant issues, were rational and were not without an intelligible justification. The Authority considered comprehensively the applicant’s explanation as to why he had not provided new information to the Minister and explained its reasons in great detail as to why it was not persuaded by those arguments (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

14. The Applicant’s complaint about a failure to consider cautions and reservations in terms of MZZJO is not made out. MZZJO does not stand for the proposition that a failure to consider cautions and reservations is a jurisdictional error. In any event, without using those express words, a fair reading of the Authority’s reasons makes clear that it carefully considered all claims and submissions made by the applicants. I accept the submissions of the first respondent that MZZJO has no application to the case before the Court.

1. Otherwise, ground 1 is no more than a disagreement with the findings and reasons of the Authority, thereby seeking merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ).

2. Accordingly, ground 1 is not made out.

Ground 5

1. Ground 5 asserts that the Authority failed to consider essential integers of the Applicant’s claim.

2. I asked Mr Hodges what were the integers that the Applicant contends were not considered. Mr Hodges responded that the Applicant was somehow associated with the LTTE bombing of a ship in Port in May 2008; and, that in June 2008 he was riding a motorbike with a friend who was shot and killed and the Applicant believed he was the target.

3. The Authority noted both claims in the following terms:

   “• In May 2008 a navy ship was sunk by the LTTE in Trincomalee harbour and this heightened the security situation in the area. Applicant 1 worked as a stevedore at the port in Trincomalee harbour.

   • On 14 June 2008 Applicant 1 was riding a motorbike with his friend who he regularly travelled to work with. His friend was shot and killed. Applicant 1 believes that he was the target and that his friend was mistaken for him. Applicant 1 has provided documents relating to the shooting and the death of his friend.”

4. The Authority accepted that the Applicant worked at a Port where a Navy ship was sunk in 2008 and thereafter there was heightened security in the area. The Authority also accepted as plausible that the Applicant was riding a motorbike with a friend who was shot and killed.

5. The Authority accepted that the Navy may be interesting in the shooting and may have questioned the Applicant as a witness. However, the Authority was not satisfied that the Navy had an interest in the Applicant beyond him being a witness to the shooting. Moreover, the Authority did not accept that the Navy had an adverse interest in the Applicant.

6. The Authority noted the Applicant’s claim to fear he was the intended target and that the Applicant was concerned for his safety and therefore preferred to be with friends than at home. However, the Authority noted that the Applicant continued to go to work at the Port from the time in June to leaving for India.

7. The Authority found it was speculation on the Applicant’s behalf that he was the intended victim of the shooting. The Authority found that the Applicant did not have a profile that would have attracted adverse attention and there was no evidence that any person or group wanted him killed. The Authority found that the Navy’s interest in questioning the Applicant did not point to an adverse interest in the Applicant. Rather, such question would have been part of an investigation into the shooting.

8. The Authority found there was no indication that the Applicant was questioned about the sinking of a Navy boat in 2008 or that the subsequent raising of security in the area caused him any harm at the time. The Authority found that the Applicant would not be at risk of harm if returned to Sri Lanka for any reasons arising from the sinking of a Navy boat in 2008.

9. In the circumstances, the Authority did consider the essential integers of the Applicant’s claims and its findings were open to it for the reasons it gave. Again, those findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation.

10. Otherwise again, ground 5 seeks merits review which this Court cannot undertake.

11. Accordingly, ground 5 is not made out.

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicants; and, had regard to all material provided in support all new information provided in accordance with s.473DC and s.473DD of the Act. The Authority identified independent country information to which it had regard.

2. The Authority made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 10 April 2019