AQP17 v Minister for Immigration

[2017] FCCA 2418

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQP17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2418

Catchwords:
MIGRATION – Safe Haven Enterprise visa application – fast track applicant – review of Immigration Assessment Authority decision – whether the assessor erred in their review of protection claims – whether consideration was correctly given to claims made by applicant – whether the Immigration Assessment Authority ought to have given consideration to the applicant being subject to bribes upon return to Sri Lanka – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5AA, 13, 14, 36, 46A, 411, 473BB, 473BC, 473BD, 473CA, 473DB, 476, pt.7AA

Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act2013 (Cth), s.3, sch.1, item 8
Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69

SZTAL v Minister for Immigration & Border Protection [2017] HCA 34

Applicant: AQP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 94 of 2017

Judgment of: Judge Smith

Hearing date: 16 August 2017

Date of Last Submission: 5 September 2017

Delivered at: Sydney and Perth via video-link

Delivered on: 2 November 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms E Tattersall, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 94 of 2017

AQP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who arrived in Australia without a visa by boat on 3 November 2012.  On 18 November 2015, he lodged an application for a Safe Haven Enterprise Visa (SHEV) which was replaced by a later application for the same visa made on 21 April 2016.

2. On 7 September 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and, for reasons that will be explained further below, the matter was referred to the Immigration Assessment Authority (IAA) for review.  On 10 January 2017, the IAA affirmed the decision under review. 

3. The applicant now seeks judicial review of the IAA’s decision. As that decision was a “migration decision” within the meaning of s.5(1) of the Migration Act 1958 (Cth) (Act), this Court has jurisdiction pursuant to s.476 of the Act. However, in order to succeed, the applicant must establish that the IAA’s decision was affected by jurisdictional error: see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2. In order to determine whether there is any such error in the IAA’s decision, it is first necessary to set out the relevant statutory scheme; then to summarise the claims made by the applicant in support of his protection visa application; and consider the way in which the IAA dealt with those claims.

Relevant statutory scheme

1. The relevant scheme is very complicated. The starting point for present purposes is the term “unauthorised maritime arrival” which was introduced into the Act with effect from 1 June 2013. That term is defined by s.5AA(1)[1] as follows:

   [1] Section 5AA was introduced into the Act with effect from 1 June 2013 by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act2013 (Cth), s.3, sch.1, item 8.

   (1)For the purposes of this Act, a person is an unauthorised maritime arrival if:

   (a)the  person entered Australia by sea:

   (i)     at an excised offshore place at any time after the excision time for that place; or

   (ii)    at any other place at any time on or after the commencement of this section; and

   (b)the person became an unlawful non-citizen because of that entry; and

   (c)the person is not an excluded maritime arrival.

   (Emphasis in original)

2. Section 5AA(2) of the Act provides that a person entered Australia by sea in a number of ways including if they “entered the migration zone except on an aircraft that landed in the migration zone”. The migration zone means “the area consisting of the States, Territories, Australian resource installations and Australian sea installations …”: s.5(1) of the Act.

3. An excised offshore place is defined by s.5(1) of the Act to include the Territory of Cocos (Keeling Islands). The excision time for the Territory of Cocos (Keeling Islands) was 12 noon on 17 September 2001 by legal time in the Australian Capital Territory.

4. An unlawful non-citizen is a non-citizen in the migration zone who is not a lawful non-citizen: s.14 of the Act. A lawful non-citizen is a non-citizen in the migration zone who holds a visa that is in effect: s.13(1) of the Act.

5. An excluded maritime arrival is defined by s.5AA(3) to mean:

   …

   (a)is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or

   (b)is a non-citizen who holds and produces a passport that is in force and endorsed with an authority to reside indefinitely on Norfolk Island; or

   (c)is included in a prescribed class of persons.

6. The applicant falls within the definition of an unauthorised maritime arrival because he arrived in the Cocos (Keeling Islands) Territory on 3 November 2012 without a visa by sea and does not fall within the definition of excluded maritime arrival.

7. The next critical definition is that of “fast track applicant” which is defined by s.5(1) of the Act to mean:

   (a)a person:

   (i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)who has made a valid application for a protection visa in accordance with the determination; or

   (b)a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).

8. For the reasons already given, the applicant was an unauthorised maritime arrival and satisfied the other requirements in sub-para.(a)(i) in the definition of “fast track applicant”.

9. On 2 September 2015, the Minister gave written notice under s.46A(2) of the Act determining that s.46A(1) did not apply to the applicant. As already observed, the applicant made an application for a protection visa on 21 April 2016.

10. The third step in the legislative cascade relevant to these proceedings is the “fast track decision”.  Such a decision is one to refuse to grant a protection visa to a fast track applicant, subject to a number of exceptions that do not apply to the applicant.

11. The fourth step is the conversion of a fast track decision to a “fast track reviewable decision” within the meaning of s.473BB of the Act. A “fast track reviewable decision” means:

    (a)a fast track decision in relation to a fast track review applicant; or

    (b)a fast track decision determined under  section 473BC;

    but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD.

12. There has been no conclusive certificate issued under s.473BD of the Act in respect of the applicant.

13. A fast track review applicant is defined to be a fast track applicant who is not an excluded fast track review applicant: s.5(1) of the Act. An excluded fast track review applicant means a fast track applicant:

    (a)who, in the opinion of the Minister:

    (i)is covered by section 91C or 91N; or

    (ii)has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or

    (iii)has made a claim for protection in a country other than Australia that was refused by that country; or

    (iv)has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country; or

    (vi)without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented)  in support of his or her application; or

    (aa)who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim:

    (i)has no plausible or credible basis; or

    (ii)if the claim is based on conditions, events or circumstances in a particular country – is not able to be substantiated by any objective evidence; or

    (iii) is made for the sole purpose of delaying or frustrating the fast track applicant’s removal from Australia; or

    (b)who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph 1(AA)(a).

    (Without alteration)

14. The Minister did not form the opinion, in either sub-paras.(a) or (aa) of the definition of “fast track review applicant” in respect of the applicant, and there is no legislative instrument as referred to in sub-para.(b) of the definition. For that reason, the applicant was a fast track review applicant. The consequence of that is, that the decision of the delegate, being a fast track reviewable decision, was referred automatically to the IAA under s.473CA of the Act. It may be noted, that as the decision was a fast track decision it was not reviewable by the Administrative Appeals Tribunal (Tribunal): sub-s.411(2)(c) of the Act.

15. Finally, the consequence of the delegate’s decision having been referred to the IAA, is that the IAA had to review the delegate’s decision and had the power to affirm the decision, or remit the decision, for reconsideration in accordance with such direction or recommendations as were permitted by the Migration Regulations 1994 (Cth): s.473BC of the Act. The review by the IAA is conducted pursuant to pt.7AA of the Act and, in essence is conducted on the papers: s.473DB.

Factual background

1. Next it is necessary to set out the claims made by the applicant in support of his application for a protection visa.  Those claims may be summarised as follows:

   a)following a bomb blast on 13 July 1983, the applicant was arrested and detained on suspicion of being part of the Liberation Tigers of Tamil Eelam (LTTE).  He was detained for 18 months and his father was able to get him out of prison and made arrangements for the applicant to leave the country for work;

   b)the applicant worked in Saudi Arabia as an electrician from 1985 to 1994;

   c)he worked for a British company in an American base in Afghanistan as a driver and in Iraq in a water bottling plant. He then went to Qatar to work as an electrician;

   d)when he returned to Sri Lanka the Criminal Investigation Division (CID) would come to his house and demand money which he always paid.  The CID would also demand money from him at the airport because he was Tamil;

   e)in 2012 the applicant was detained by officers at the airport and told that he was arrested on suspicion of supporting terrorism.  He was detained for one day and let go, but the CID kept his passport and because he had no money to pay for it, the CID retained that passport;

   f)the CID still attend the applicant’s mother’s house two to three times a year looking for him;

   g)the CID do not go to his wife’s house because they do not know that he is married;

   h)the applicant has lost contact with his family and assumes they are dead.

2. In submissions prepared by the applicant’s agents, the applicant’s claims were summarised as being in fear of persecution for the following reasons:

   a)his Tamil ethnicity;

   b)imputed political opinion, that is, supporting the LTTE;

   c)membership of a particular social group, Tamils with perceived and family links to the LTTE;

   d)illegal departure from Sri Lanka;

   e)membership of a particular social group, returned asylum seekers; and

   f)the Department of Immigration and Border Protection (Department) website data breach.

3. The data breach referred to in sub-para.(f) above, occurred in February 2014 when details of people held in immigration detention were inadvertently disclosed on a website maintained by the Department: see Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29.

4. On 7 September 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and, as I have observed, as that decision was a fast track reviewable decision, the decision was referred to the IAA for review on 13 September 2016.

5. The IAA made its decision on 10 January 2017 to affirm the decision of the delegate.

IAA’s decision

1. The IAA accepted that the applicant had been detained for up to 18 months as claimed by him and that he had suffered physical violence and was mistreated whilst in detention. It accepted that his father had paid to obtain the applicant’s release and was satisfied that the applicant was released without charge after 18 months.  The IAA was also satisfied that the authorities had no ongoing suspicion that the applicant was involved in the 1983 bombing, and that they do not have any suspicion of him in that connection, at the current time.  Thus, the IAA was satisfied that the applicant would not be targeted for investigation or other interest by the authorities, or that he would suffer serious harm due to his previous detention and the investigation arising from the bombing incident.

2. The IAA considered that it was implausible that the authorities would suddenly impute the applicant with the LTTE, on the basis of a connection with two people who had been raised by his father and had later become involved in the LTTE.

3. The IAA also did not accept that the applicant’s name would give rise to any serious risk of harm given the popularity of that name amongst Tamils, and the lack of information to the effect that people were targeted, simply by reason of having that name.

4. The IAA accepted that the applicant may have been required to pay bribes to airport officers when returning from working overseas; however, it that found that that was not because of any adverse profile of the applicant’s but rather as a result of corrupt officials.

5. The IAA found that, if the applicant was detained at the airport, it was not due to any imputed links with the LTTE or for any of the other reasons claimed by him. While it accepted that the applicant’s passport may have been taken by the authorities, it was not satisfied that the applicant remained of any interest to the authorities.

6. The IAA accepted that the CID visited his mother but was not satisfied that this indicated that the applicant remained of interest to the authorities.

7. In respect of the data breach, the IAA found that, even if the authorities had become aware of the applicant’s name and whereabouts, this would not lead to any interest in him beyond his possible illegal departure. That illegal departure did not give rise to any profile connected to the LTTE.

8. In light of its conclusions about the applicant’s profile, the IAA found that he was not on any terror watch list, or faced any real chance of abduction in a white van.

9. The IAA next considered the broader claim based on the applicant’s Tamil ethnicity and the fact that he was from the north of Sri Lanka. Although it accepted that Sri Lankan Tamils continued to face difficulties, including returning to, and taking up their properties in the north and east of Sri Lanka, the IAA did not accept that those difficulties amounted to serious harm and found that the applicant did not face a real chance of serious harm for these reasons.

10. The IAA accepted that the applicant departed illegally from Sri Lanka and that as a consequence, he may be questioned on return, held briefly on remand in poor prison conditions, and fined. However, it found that none of these matters would constitute serious harm. Further, it found that the treatment of the applicant would be pursuant to the terms of a law of general application and would not be discriminatory or selectively enforced. It concluded that any harm suffered by the applicant by reason of his illegal departure from Sri Lanka would not amount to persecution for the purposes of the Act.

11. For those reasons, the IAA was not satisfied that the applicant met the criterion in sub-s.36(2)(a) of the Act. It came to the same conclusion in respect of the criterion in sub-s.36(2)(aa).

12. The IAA’s conclusion in respect of the criterion in sub-s.36(2)(aa) of the Act was largely derived from its findings made in respect of the sub-s.36(2)(a) criterion. In addition to those findings, it based its conclusion on its finding that there was no intentional infliction of the harm that the applicant might face as a consequence of the poor prison conditions.

13. For those reasons, the IAA affirmed the decision of the delegate.

Consideration

1. The application filed by the applicant contains two grounds:

   1.The assessor has made jurisdictional errors in reviewing my protection claims.

   2.The assessor has not given consideration to some important claims I made.

2. In the absence of particulars, neither ground assists in revealing any error made by the IAA. The applicant did not file any written submissions prior to the hearing and he appeared unrepresented at the hearing. When asked what error the IAA made, the applicant said that the Emergency Law was still active and the IAA did not assess that properly. Although this submission was rather vague, it is tolerably clear that the applicant was referring to the temporary “Emergency Regulation 17” referred to in the written submissions prepared by his migration agents on 4 May 2016: CB 197 at [2.8]. The submission was that this Regulation enabled a person “suspected of being a threat to national security could be detained without trial for an unlimited time”.

3. The IAA referred to “a provisional emergency law under which a person could be detained for 18 months without trial”: [13] of its reasons. On the basis of the existence of that law, the IAA accepted that the applicant was detained in 1983 and 1984 for 18 months as claimed. The IAA also referred to “emergency powers” when considering the situation for Tamils after the end of the civil war. It found that some aspects of those powers had been lifted.

4. Assuming for present purposes that the applicant was referring to the Emergency Regulation 17, and is correct that it was still in force, the IAA made no error in respect of it. That Regulation applied to people who were suspected of being a threat to national security. On the IAA’s findings, the applicant was not such a person. For that reason, the ongoing operation of the Emergency Regulation 17 did not give rise to any real chance of the applicant suffering any harm.

5. For those reasons, the grounds raised by the applicant are rejected.

6. The Minister properly raised the application of the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69 in light of the IAA’s finding that there was no intentional infliction of harm (see [35] above). At the time of the hearing, the High Court had heard an appeal from that decision and had reserved its decision. The applicant asked that the Court reserve its decision until the High Court had delivered its judgment in the appeal.

1. The High Court handed down its judgment on 6 September 2017: SZTAL v Minister for Immigration & Border Protection [2017] HCA 34. The Court dismissed the appeal by majority. As a consequence, the IAA applied the correct meaning of “serious harm” in s.36(2A) of the Act.

2. At the hearing, I raised with the Minister, the question whether the IAA ought to have considered whether the applicant was subject to bribes on his return to Sri Lanka as he had been when returning from working in the Middle East and, in particular, whether it had failed to consider whether the bribes were sought for reason of the applicant’s membership of a particular social group (see [20] of the IAA’s reasons). Both parties were given leave to file further submissions on these questions.

3. The Minister submitted that the claim, as articulated in my questions, was not clearly raised and that, in any event, the IAA had dealt with that claim in its broader findings. The applicant filed submissions that did not advance the issue.

4. Closer examination of the claim about the bribes reveals that the IAA did not make any error in this respect. First, the applicant claimed that he was forced to pay a bribe when he returned from working in the Middle East. The applicant worked overseas in a number of different countries from 1985 until 2012. In the statement lodged with his protection visa application, the applicant said that, on his last return he did not have to pay a bribe, but that his passport was taken. The applicant claimed that this was only because he was Tamil. He said that the officers knew that he had come back from working in the Middle East and so thought that he had lots of money to give them. The applicant also said that the officers threatened him with false allegations of supporting the LTTE in order to extract money from him.

5. As I have observed, the IAA accepted that the applicant had paid bribes and had had his passport taken. It rejected the claim that this was for reason of any possible connection with the LTTE, as well as his claim that the police had threatened him with a false allegation of supporting the LTTE.

6. The possibility that the applicant might face further bribery did not arise in circumstances where the applicant would not be returning from having worked in the Middle East, and where the other possible motivation of support for the LTTE was rejected by the IAA.

Conclusion

1. There is no jurisdictional error in the IAA’s decision. The application must be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     2 November 2017