ARP18 and Minister for Home Affairs and Anor
[2018] FCCA 2143
•18 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARP18 & MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2143 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority applied an unduly narrow interpretation of the term “exceptional circumstances” – whether the Authority constructively failed to exercise its jurisdiction under s 473DC of the Act – whether the Authority failed to consider whether an International Treaties Obligation Assessment had been carried out – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 5H, 36, 418, 473CB, 473DC, 473DD, 476. |
| Cases cited: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958. SZOIN v Minister for Immigration & Citizenship [2011] 191 FCR 123. |
| Applicant: | ARP18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 398 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 18 June 2018 |
| Date of Last Submission: | 18 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Ms K Garaty HWL Ebsworth Lawyers |
ORDERS
Grant leave to the applicant to rely upon the amended ground 2 identified in the applicant’s submissions filed on 14 June 2018 and the Court dispenses with the need for the filing of an amended application.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 398 of 2018
| ARP18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
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 Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 18 January 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise 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 2 May 2013 as an unauthorised maritime arrival. The applicant claimed to be a Tamil Hindu from the Jaffna District of the Northern Province of Sri Lanka.
The applicant claimed to fear harm on return to Sri Lanka that he would be arrested, detained and harmed or killed by authorities at the airport or by authorities or paramilitary groups in his home area because they suspect he is involved with the Liberation Tigers of Tamil Eelam (“LTTE”). The applicant believes he will be suspected of something to hide because he left Sri Lanka after the Eelam People’s Democratic Party (“EPDP”) enquired about him and also that there will be suspicion about him because he has been away from the country for so long.
The applicant was in detention in February 2014 and the applicant received a letter dated 14 March 2014, identifying that a routine report released on the Department’s website unintentionally enabled access to some personal information about people who were in immigration detention and that the information was accessible for a short period of time. The letter referred to the fact that it was possible to access the applicant’s name, date of birth, nationality, gender, identification of when detained, reason and where detained and if any other family members are in detention. Nothing in the letter identified the release of information in respect of the applicant’s claims to fear harm or concerns in relation to return to Sri Lanka.
On 30 May 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
The Authority
On 5 June 2017, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.
Submissions and new information were, in fact, put on on behalf of the applicant by a letter dated 23 June 2017, received by the Authority on 26 June 2017 and the Authority expressly referred to the same in its reasons. The Authority identified the background to the visa application and in relation to the submissions identified that insofar as it engaged with the argument regarding the delegate’s decision, it was not new information and had regard to the same.
There was however, new information identified by the Authority relevantly as follows:
(a) A claim that the Ealam People’s Democratic Party (EPDP) suspected the applicant was using his role in a youth organisation to fundraise for the LTTE.
(b) Information regarding a Hindu festival the Applicant claimed to have participated in on 27 November 2012, supported by printouts from internet sites regarding the date of Karthigai Deepam festival in 2012.
(c) A letter from Jaffna Teaching Hospital regarding treatment the Applicant’s mother had received for mental health issues since 2013 as a result of harassment related to army intelligence searching for her son.
(d) A letter of support, dated 21 June 2017, from a member of the Northern Provincial Council detailing the issues for the Applicant’s family in Sri Lanka as a result of the applicant’s adverse profile.
(e) A Warrant of Arrest in the Applicant’s name for suspicion of supporting the LTTE, issued on 17 July 2013.
It is the new information referred to in paragraphs (a), (c), (d) and (e) above that are relevant to ground 1 in the application to which the Court will return. However, in summary, the Authority found there were not exceptional circumstances to justify considering the new information identified in categories (a) to (e). The Authority summarised the applicant’s claims and evidence and took into account country information. The Authority was satisfied that the situation with Tamils in Sri Lanka had significantly improved since the applicant departed in 2013 and continues to improve.
The Authority found the government is taking steps to address past discrimination and violence against Tamils and that the security situation in the Northern Province is greatly improved. The Authority, taking into account country information and the applicant’s evidence denying he participated in any armed conflict or fighting or that he had been involved with the LTEE, found the chance of the applicant being imputed with any connection to the LTEE currently or in the foreseeable future is remote, including on the basis of his Tamil ethnicity or his origins from the Northern Province.
The Authority was not satisfied the applicant faced a real chance of harm on the basis of his Tamil ethnicity or for reason of his origins in the North of Sri Lanka.
The Authority identified that the delegate had considered the chance of the applicant suffering harm on arrival at Colombo airport and afterwards on account of being a Tamil who had lived for periods abroad and returning as a failed asylum seeker who departed the country illegally. The Authority referred to country information that all returnees are treated according to standard procedures, irrespective of ethnicity, and not subject to mistreatment during processing at the airport.
The Authority accepted that the Sri Lanka authorities may infer the applicant sought asylum in Australia due to the manner of his return. The Authority accepted some asylum seekers with actual or perceived links to the LTEE may be at risk of harm during processing. The Authority noted that the applicant would not be of adverse interest to authorities on his return to Sri Lanka and found the applicant did not face a real chance of harm for being a Tamil who sought asylum in Australia or because he spent a period of time in Australia.
The Authority was not satisfied there was a real chance the applicant would suffer persecution now or in the reasonably foreseeable future as a result of his ethnicity as a Tamil, for originating from the Northern Province, due to any actual imputed connection to the LTEE, or because the applicant claimed asylum in Australia, or any combination of these factors. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and that the applicant failed to meet the criteria under s 36(2)(a) of the Act.
In considering complementary protection, the Authority expressly took into account the finding that the applicant did not face a real chance of any harm because he is a Tamil male from the Northern Province, or as a result of his previous interactions with the Sri Lankan authorities, or for seeking asylum in Australia.
The Authority was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk that the applicant will 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
The grounds in the application are as follows:
1. The Authority constructively failed to exercise its jurisdiction.
Particulars
The Authority refused, pursuant to s 473DD, to consider documents submitted by the Applicant. In doing so it applied an unduly narrow interpretation of the term "exceptional circumstances" in that section.
2. The Authority acted unreasonably, or constructively failed to exercise its jurisdiction, in not ensuring that it had been provided all relevant documents under s 473CB to enable it to exercise its jurisdiction to review the delegate's decision, including the outcome, if any, of an International Treaties Obligation Assessment in relation to the Applicant, and then to invite the Applicant to comment on those documents or that information.
Particulars
The Applicant's personal information had been made public in an unauthorised manner by the Minister's Department in February 2014. The Authority did not consider whether an International Treaty Obligations Assessment had been carried out in respect of the Applicant following the breach, or if it had been carried out what the result had been.
Ground 1
Mr Jones, solicitor for the applicant, took the Court first to the information identified in category A above, dealt with in the Authority’s reasons in paragraphs 5 to 6. Mr Jones relied upon the decision in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (“BVZ16”) and in particular at paragraph [8], [9] and [46] to [48]. Mr Jones submitted that in dealing with the new information the Authority in the present case had made the error of the kind identified by the learned White J in BVZ16.
Mr Jones submitted that the Authority in this case had refused to consider the new information because it was not satisfied that it could not have been provided earlier in respect of which Mr Jones referred to the reference to the fact that that failure raised questions as to its veracity and that the Authority had reasoned, therefore, that it was not satisfied there were exceptional circumstances. Mr Jones submitted that this reasoning conflated the alternated consideration set out in s 473DD(b)(i) of the Act and s 473DD (b)(ii) of the Act by using what is a finding about s 473DD(b)(i) of the Act to determine the finding about s 473DD (b)(ii) of the Act. In that regard, Mr Jones relied upon what was said in BVZ16 at paragraph [57].
Mr Jones drew attention to the need to consider s 473DD(b)(ii) of the Act in making a determination under s 473DD(b)(ii) of the Act and that that required a determination on the face of the information and not the circumstances under which it was given. Mr Jones submitted that if the information was credible the Authority was required to have regard to it and that it would then need to examine the second step and the weight to be given to it in the context of the entirety of evidence before it.
Mr Jones contended that the information was clearly personal information that was not previously known by the delegate and the Authority should have had regard to it. Mr Jones submitted that the Authority’s findings that the requirement in s 473DD(a) of the Act was not met was entirely based on the Authority’s mistaken reasoning concerning s 473DD(b) of the Act and that the Authority’s consideration of the new information was accordingly flawed.
The Authority’s reasons are not to be read with a keen eye for error in relation to the new information. It is clear from the Authority’s reasons at paragraph 5 and 6 that the Authority took into account the significance of the information. The identifying by the Authority of the significance of the information supports the Court finding that the Authority has had regard to both limbs of s 473DD(b) of the Act.
I do not accept that the Authority conflated the considerations under the two limbs of s 473DD(b) of the Act, nor does the reference to questions as to veracity of the claim in the Authority’s reasons suggest that the Authority approached the matter other than as a preliminary determination as to whether the applicant met the criteria under s 473DD of the Act. Indeed, the reference to questions as to veracity of the claim also supports the Court finding that the Authority understood and had regard to both limbs of s 473DD(b) of the Act.
I do not accept that the Authority conflated the alternative consideration under s 473DD(b) of the Act. The Authority’s reasons should be read as a whole. On a fair reading, the Authority’s reasons support the Court finding that the Authority did not misconstrue or misapply s 473DD of the Act, or adopt an erroneous meaning of exceptional circumstances, or fail to have regard to both limbs of s 473DD(b) of the Act. The determination of whether or not the new information the requirements under s 473DD of the Act was not flawed and there was no constructive failure by the Authority to exercise its jurisdiction as alleged in ground 1. No jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, leave was granted to the applicant to rely upon the reformulated ground 2 identified in the applicant’s submissions in paragraph 5.
Mr Jones relied upon an affidavit annexing the letter sent to his client in relation to the data breach. That affidavit by the applicant did not depose to the receipt of any further correspondence or depose to there having been an International Treaties Obligations Assessment (“ITOA”) assessment carried out. If there had been such an assessment the applicant was in a position to prove the same.
The Court finds that there was no ITOA assessment and finds the applicant received no further correspondence informing him that there would be an ITOA assessment. That part of ground 2 that is founded upon the possibility of an ITOA assessment is not supported by any evidence and the hypothetical existence of material in relation to an ITOA assessment is not capable of making out any failure by the Secretary under s 473CB of the Act or any unreasonable failure by the Authority to consider exercise its powers under s 473DC of the Act.
The remaining kernel of the submissions advanced by Mr Jones focused on the data breach letter itself, which Mr Jones contended was relevant to the applicant’s claims and was material that should have been provided by the Secretary to the Authority under s 473CB of the Act which relevantly provides as follows:
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.
Mr Jones also drew the Court’s attention to the reasoning that had been adopted in SZOIN v Minister for Immigration & Citizenship [2011] 191 FCR 123 (“SZOIN”) in relation to a similar provision being s 418 of the Act applicable to a different process. Mr Jones emphasised that the different nature of the process undertaken in the present case under Part 7AA of the Act. Mr Jones drew attention to the breadth of the meaning of possession or control. I accept Mr Jones’ submission that in the circumstances of the present case the letter can be said to have been in the possession or control of the Secretary.
Mr Jones submitted that the letter is one in respect of which, objectively assessed, should be said that the letter was relevant to the applicant’s claims. Mr Jones submitted that if it was relevant, that is sufficient to make out a jurisdictional error either by reason of a disabling of the Authority to conduct the review required under Part 7AA of the Act or by reason of the failure to consider the exercise of its powers under s 473DC of the Act to seek further information in relation to the substance of the letter and the process that Mr Jones submits may have been undertaken.
For the reasons earlier given, the hypothetical possibility of an ITOA assessment is not a matter that the letter proves and there is no basis to find that the Authority engaged in any illegal unreasonableness in failing to exercise a power under s 473DC of the Act in not seeking additional information about the data breach. Mr Jones submitted that it would have been apparent to the Authority that the applicant was in detention at the time of conducting the review and that accordingly, there was information before the Authority by reason of which the Authority should have exercised its powers to seek information about the data breach and any ITOA assessment.
I do not accept that the fact that the applicant was in detention at the relevant time gives rise, in the circumstances of the present case, to there being legal unreasonableness from the failure to consider or to exercise the power under s 473DC of the Act as advanced by Mr Jones. The position may have been otherwise had the applicant articulated an express claim relating to the data breach. That course was open to the applicant as a result of the letter sent by the Authority in relation to the review and no such claim was advanced. I do not accept that any such claim fairly arose on the material before the Authority in the circumstances of the present case.
Further, whilst I do accept that the letter objectively can be said to be relevant and, to that extent, find in favour of the applicant in that there was a breach of s 473CB of the Act by the Secretary that does not of itself give rise to disabling the Authority from conducting the review required under Part 7AA of the Act. The Court is of the view that the position in relation to the letter is similar to that where it is alleged that there has been overlooked a document in the course of the review. The test to be applied in that regard is whether the information is credible, relevant and significant in determining whether there has been a jurisdictional error.
In the circumstances of the present case, it is apparent that the Authority appreciated that there was a claim advanced on behalf of the applicant that he feared harm as a failed asylum seeker. It is also apparent that the Authority accepted that the Sri Lankan authorities may be aware the applicant sought asylum in Australia. The letter, in those circumstances, is not one that could be said to be credible, relevant and significant in the circumstances of this case. The Authority expressly considered the applicant’s claimed fear of harm by reason of having sought asylum in Australia and made adverse findings that were open to the Authority. The position may have been otherwise if the Authority had not considered the applicant’s claim to fear harm by reason of having sought asylum in Australia and, in that regard, if the Authority had not accepted the inference that the authorities may be aware that the applicant sought asylum.
The data breach letter on its face could only have significance in the circumstances of this case, in the absence of any other claim by the applicant, to the possible risk that authorities were aware that the applicant had sought asylum in Australia. That fact was taken into account in the Authority’s dispositive findings in respect of the applicant’s claimed fear of harm by reason of having sought asylum in Australia. Accordingly, the letter in the circumstances of the present case and the failure of the Secretary to provide the same to the Authority was not credible, relevant and significant information.
Accordingly, the breach of s 473CB of the Act did not give rise to the Authority being disabled from conducting the review required under Part 7AA of the Act. Nor did the failure to provide the letter to the Authority give rise to the Authority not having before it credible, relevant and significant information by reason of which the Court should find there is a jurisdictional error or by reason of which the Court should find that there was an unreasonable failure to consider or to exercise a power under s 473DC of the Act.
Accordingly, the Court finds the Authority did not unreasonably or constructively fail to exercise its jurisdiction. No jurisdictional error as alleged in ground 2 is made out.
Conclusion
As the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 7 August 2018
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