Ast18 v Minister for Home Affairs

[2018] FCCA 1990

FEDERAL CIRCUIT COURT OF AUSTRALIA

AST18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1990

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.36, 473CB, 473DC, 473DD, 473FB

Cases cited:
AKK17 v Minister for Immigration & Anor [2017] FCCA 2486
DHV16 & Minister for Immigration & Anor [2018] FCCA 349
Minister for Immigration v Stretton (2016) 237 FCR 1
Minister for Immigration v SZMDS (2010) 240 CLR 611

Applicant: AST18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 425 of 2018

Judgment of: Judge Driver

Hearing date: 23 July 2018

Delivered at: Sydney

Delivered on: 23 July 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Clayton Utz

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 425 of 2018

AST18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 12 February 2018.  The Authority affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts concerning the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions filed on 16 July 2018. 

3. The applicant is a citizen of Sri Lanka born in July 1985.[1]  He first arrived in Australia on 6 September 2012 as an unauthorised maritime arrival. On 21 October 2016, he applied for the visa.[2]  In support of his application for the visa, the following matters were raised:

   a)the applicant was born in Jaffna, is of Tamil ethnicity, and the Hindu religion;[3]

   b)in 2002, the Liberation Tigers of Tamil Eelam (LTTE) came to his home and forcibly took the applicant, after he refused to join them.  He was kept in a camp at Vanni for 10-15 days, until he escaped. When he was being held, the Criminal Investigation Department (CID) came looking for him, because they thought he had joined the LTTE voluntarily.  The CID later told the applicant that they would keep an eye on him;[4]

   c)the applicant later became involved with the Tamil National Alliance (TNA) and assisted them with campaigning, talking to people, giving speeches and putting up posters;[5]

   d)in 2004, the applicant attended a TNA meeting, at which the Eelam People’s Democratic Party (EPDP) attacked the participants. One person died.  The applicant was scared, so he fled to Qatar, where he remained for two years;[6]

   e)in 2007, the applicant returned to Colombo.  On one occasion, a police officer took him to the police station, accused him of being an LTTE member, and held him for a day.  The applicant then departed for Saudi Arabia, where he remained for 5 years;[7]

   f)in 2012, the applicant returned to Sri Lanka. In June 2012, the CID came to his home, asked him to attend an army camp, and then accused him of being an LTTE member. On another occasion, he was attacked by an EPDP member, and on another occasion, he was attacked by an army officer.  He subsequently fled to Australia;[8] and

   g)the applicant fears that if he returns to Sri Lanka, he will suffer mistreatment and persecution by the CID (because they suspect he is involved with the LTTE) and the EPDP (because of his involvement with the TNA).[9]

   [1] Court Book (CB) 1

   [2] CB 31-72

   [3] CB 68

   [4] CB 69

   [5] CB 69

   [6] CB 69

   [7] CB 70

   [8] CB 70

   [9] CB 71

4. On 7 July 2017, the delegate refused to grant the applicant the visa.[10]  On 12 July 2017, the delegate’s decision was referred to the Authority.[11]  On 30 July 2017, a short submission was provided by the applicant’s representative.[12]

   [10] CB 108-127

   [11] CB 132-145

   [12] CB 146-147

The Authority’s decision

1. The Authority observed that the applicant’s submissions stated that he was willing to attend an interview, but did not identify any reason why an interview should occur.  The Authority considered that, in all the circumstances, an interview was not warranted.[13] The Authority also considered a reference made in the submission to country information, and found that it was new information. The Authority did not accept that new information, relying on s.473DC(2) and s.473FB(5) of the Migration Act 1958 (Cth) (Migration Act), because the applicant had failed to comply with the Practice Direction insofar as he had not identified the source of the information, provided a copy of it, explained why it was not and could not have been previously provided, or whether it was credible personal information that could have affected consideration of his claims.[14]  The Authority stated that it was unable to identify the source of the information or evaluate whether it could have been provided to the delegate, and also referred to the range of other reliable information before it.[15]

   [13] CB 159 [5]

   [14] CB 159-160 [6]

   [15] CB 160 [6]

2. The Authority accepted that the applicant’s father and sister were tortured by the army in around 1996[16] and also that, in around 2002, the LTTE came to Jaffna and sought to recruit members.[17]  However, the Authority found the applicant’s account of his escape from an LTTE camp in Vanni as “unconvincing”, which led it to doubt his claim to have been forcibly recruited and that he escaped after 15 days.[18]  In this respect, the Authority referred to “implausibilities” in the applicant’s account and also considered that the account was inconsistent with country information available to it.[19]  However, the Authority did accept, also on the basis of country information, that the applicant underwent a 15 day training programme with the LTTE and that he returned home after the completion of it.[20]

   [16] CB 161 [11]

   [17] CB 161 [12]

   [18] CB 162 [13]-[14]

   [19] CB 161 [13]

   [20] CB 161 [14]

3. The Authority also accepted that while at the LTTE camp, Sri Lankan officials came to his family home enquiring after him, and that he was required to attend a camp for questioning, but it found that he was not detained or charged, or subsequently monitored or subject to reporting requirements.[21]  The Authority did not accept that the applicant faces a well-founded fear of harm on return to Sri Lanka on account of the authorities being aware he trained with the LTTE, because, on the applicant’s own account, the authorities knew in 2002 of his training, but he did not suffer any harm while he lived in Sri Lanka until 2005.[22]

   [21] CB 162 [15]

   [22] CB 163 [16]

4. The Authority accepted that the applicant was subject to identity and security checks, had been taken to a police station for questioning while living in Colombo in 2007, and was questioned when entering and exiting Sri Lanka via the airport at that time.  However, the Authority considered this was indicative of the general monitoring of the Sri Lankan population and did not indicate an ongoing adverse interest in him.[23] Similarly, the Authority considered that the questioning of the applicant in June 2012 was not indicative of an ongoing adverse profile,[24] and the Authority did not accept that the Army were looking for him at that time.[25]  The Authority did not accept that the applicant had been imputed with an LTTE profile, or that he would be on return to Sri Lanka,[26] or that there was a real chance he would suffer harm on account of his Tamil ethnicity.[27]

   [23] CB 163 [17]

   [24] CB 163-164 [18]-[19]

   [25] CB 164 [19]

   [26] CB 164 [19]; 166 [24]; 168 [35]

   [27] CB 166 [24]

5. The Authority accepted that the applicant (while a student) provided support to a teacher campaigning for the TNA, but found that he was not then, and has not subsequently become, a member of the TNA, and his level of support was at a low level.[28]  The Authority noted that the applicant did not suffer any harm on account of this support, and did not accept that the EPDP ever had any interest in him (because of his activities in support of the TNA), would have any interest in him on return to Sri Lanka now, or that he was attacked by EPDP members in 2012.[29]  It also did not accept that the applicant would face harm if he supported the TNA in the future.[30]

   [28] CB 164 [20]-[21]

   [29] CB 165 [22]

   [30] CB 165 [23]

6. The Authority further accepted that the applicant departed Sri Lanka illegally and would be subject to the Immigrants and Emigrants Act (I&E Act).  It accepted that he may be questioned and charged on return, and may be detained for a short period, but was not satisfied that such questioning or detention amounted to significant harm or serious harm.[31] Additionally, the Authority found that the I&E Act was a law of general application that was not applied in a discriminatory manner.[32]  Finally, it did not accept that the applicant’s status as a failed asylum seeker would bring him to the adverse attention of the Sri Lankan authorities, or that he would face a real chance of harm for that reason on return.[33]

   [31] CB 166-167 [25]-[32]

   [32] CB 167 [33]

   [33] CB 167 [34]

7. Accordingly, the Authority was not satisfied that the applicant met the requirements of s.36(2)(a) of the Migration Act.[34]  The Authority also was not satisfied that the applicant faced a real risk of suffering significant harm if he returned to Sri Lanka, in large part relying on its earlier findings.[35] The Authority was thus not satisfied that the applicant met s.36(2)(aa) of the Migration Act.[36]

   [34] CB 168 [36]

   [35] CB 168-169 [39]-[42]

   [36] CB 169 [43]

The present proceedings

1. These proceedings began with a show cause application filed on 19 February 2018.  The applicant continues to rely upon that application.  There are eight numbered grounds in it:

   1.IAA erred in not being satisfied the applicant will be at risk of serious harm now or in the reasonably foreseeable future if returned to Sri Lanka

   2.IAA erred in finding the Applicant does not meet S 5H (1) or S 36 (2)(a) of the Migration Act

   3.IAA erred in not being satisfied there is a real chance the applicant would face harm on return to SL as a failed asylum seekers, now or in the reasonably foreseeable future, or that we face a real chance of persecution now or in the reasonably foreseeable future,

   4.IAA erred in finding the Applicant does not have a well-founded fear of persecution within the meaning of S 5J;

   5.IAA erred in finding there is not a real chance of harm to the applicant now or in the reasonably foreseeable future, for any LTTE links, for any imputed political opinion, as an ethnic Tamil from North of Sri Lanka, as a returned Tamil asylum seekers or a combination of these if returned to Sri Lanka

   6.IAA erred in finding the Applicant does not meet S 36 (2)(aa) of the Migration Act

   7.IAA erred in affirming the Delegate's decision not to grant the applicant a protection visa

   8.IAA erred in not granting the applicant a protection visa,

   such errors amounting to errors in law.

   (errors in original)

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 9 April 2018. 

3. Only the Minister filed written submissions for today’s hearing in accordance with procedural orders made by a registrar. 

4. I invited oral submissions from the applicant this morning.  He raised three matters.  The first is the applicant’s disagreement with the Authority’s reasons concerning its rejection of his claim that he remains of interest to the Sri Lankan authorities because of a perceived connection with the LTTE.  That disagreement goes to the merits of the Authority decision, which are beyond the scope of this proceeding. 

5. Secondly, the applicant referred to a statement by a Sri Lankan politician about two weeks ago calling for the reformation of the LTTE.  Plainly, that is a very recent development which could not have been considered by the Authority. 

6. Thirdly, the applicant referred to his subjective fear of returning to Sri Lanka.  That subjective fear was not in dispute before the Authority.  The issue for the Authority was whether the applicant’s fear was well founded. 

7. I invited submissions from the Minister’s counsel concerning three aspects of the Authority decision.  First, at [4] of its reasons, [37] the Authority refers to two letters which had apparently been mentioned at the applicant’s interview with the delegate.  The Authority states that the letters were not provided by the applicant as part of his visa application and were not referenced or addressed in the delegate’s decision and were not part of the information given to the Authority by the Secretary. 

   [37] CB 159

8. The Authority states that it did not have regard to the discussion at the interview about the letters or draw any adverse findings from that discussion.  The letters do not appear in the court book and were not before the Authority.  It was not apparent from the available information whether the discussion at the interview with the delegate was sufficiently clear that the import of the letters could be deduced from the discussion. 

9. If, as appears likely, the letters were not provided to the delegate, the delegate could not consider them.  It is clear that they were not included in the information given by the Secretary to the Authority.  That supports an inference that the letters were not given to the Minister’s Department. 

10. I do not rule out the possibility that in a particular case, a breach by the Secretary of the obligation imposed under s.473CB(1)(b) of the Migration Act might disable the Authority’s review function, given its general dependence on the information provided to it by the Minister’s Department. In this regard, I refer to my earlier decision in AKK17 v Minister for Immigration & Anor.[38] 

    [38] [2017] FCCA 2486

11. In the present case, however, there is nothing to indicate that there was any breach of that obligation by the Secretary.  In oral argument today, the applicant could not recall what the letters were about or what happened to them.  I conclude that there is no arguable case of jurisdictional error by the Authority in relation to the two letters referred to. 

12. Secondly, at [5] of its decision the Authority correctly received the applicant’s submission to the extent that it contained argument about the decision of the delegate.  The Authority noted that the applicant had indicated a willingness to attend an interview with the Authority to present oral evidence if any issues arose.  I infer that the applicant was intending to offer his attendance if any new issues arose.  In any event, the applicant did not further explore that question in the submission and the Authority could not discern any justification for the conduct of an interview.  I see no arguable case of jurisdictional error by the Authority in relation to the question of an interview. 

13. Thirdly, at [6] of its reasons the Authority referred to an assertion in the applicant’s submission about information concerning a young Tamil male in a similar situation to the applicant, who apparently suffered harm in Sri Lanka.  The Authority noted, in its reasons, that the submission gave no source for the information and the information was not provided other than in the form of a general assertion in the submission.  As the Authority notes in its reasons, the applicant had not complied with [24], [25] and [26] of the President’s Practice Direction.[39] Critically important here, in my view, was the failure to comply with [26]. The Authority cannot be expected to deal with new information that is not properly sourced.

    [39] Reproduced at CB 143

14. The Authority referred to s.473FB(5) of the Migration Act as supporting its decision not to accept the new information. In DHV16 & Minister for Immigration & Anor[40] from [96], I held that s.473FB(5) provides a separate and antecedent discretion which, if lawfully exercised, relieves the Authority from engaging in the consideration called for under s.473DD. There was no express consideration of s.473DD in this case by the Authority.

    [40] [2018] FCCA 349

15. It does not necessarily follow that the Authority gave no consideration to s.473DD, but on the assumption that it did not consider that section, the Authority was, in my view, entitled to decline to receive the information pursuant to s.473FB(5). I see no arguable case of error in relation to the Authority’s approach.

16. The Minister’s submissions otherwise deal with the grounds advanced by the applicant in his application.  I agree with the Minister’s submissions in relation to those grounds.

Grounds 1-6

1. Grounds 1 to 6 are not particularised, and no submissions have been provided in which they are developed. As such, it is difficult to understand the particular complaint(s) raised by the applicant. However, the gravamen of the grounds (taken together) appears to be that the Authority fell into jurisdictional error by not being satisfied that the applicant faced a real chance, or real risk, of suffering serious, or significant, harm on return to Sri Lanka, and thus erred in not being satisfied that the applicant met s.36(2)(a) or s.36(2)(aa).

2. So construed, the applicant’s grounds express his factual disagreement with the Authority’s ultimate conclusions and invite this Court to engage in merits review. Expressions of disagreement with factual findings do not establish that the findings were legally irrational or illogical,[41] or that the Authority fell into jurisdictional error.  The Authority gave detailed reasons for not being satisfied that the applicant would face a real chance or real risk of suffering serious or significant harm on return to Sri Lanka.  Nothing in its reasons shows a misunderstanding of the applicable principles[42] and its factual findings were rational and logical, because a rational and logical decision-maker could have reached those same conclusions, on the basis of the material that was before the Authority: see SZMDS; [43] see, too, Minister for Immigration v Stretton,[44] where Allsop CJ observed that the question is “whether a decision-maker could reasonably come to the conclusion” actually reached.

   [41] See Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124]

   [42] Cf. CB 161 [8]-[9]

   [43] At [131], [135] per Crennan and Bell JJ (see also Heydon J at [78])

   [44] (2016) 237 FCR 1 at [21]

3. Ground 3 refers to the applicant allegedly facing harm on return to Sri Lanka as a failed asylum seeker.  However, the Authority expressly dealt with that matter at [34],[45] and was not satisfied (including on account of country information) that there was a real chance that the applicant would suffer harm for that reason.  The applicant does not articulate any particular error by the Authority in reaching that conclusion, and none is apparent.  Ground 5 also refers to the applicant allegedly facing harm on return to Sri Lanka on account of actual or imputed LTTE links, or his ethnicity as a Tamil, or a combination of such factors.  The Authority expressly considered these too, but it was not satisfied that they gave rise to a real chance or real risk of harm.[46]  Again, the applicant does not show any particular error by the Authority in reaching that conclusion, and none is apparent.

   [45] CB 167-168

   [46] See eg. CB 164 [19]; 166 [24]; 168 [35]

Grounds 7-8

1. These grounds allege that the Authority erred in affirming the delegate’s decision and not granting the visa.  These grounds simply express disagreement with the Authority’s decision and do not allege, much less establish an arguable case of jurisdictional error.

Conclusion

1. I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the Authority. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant indicated a wish to appeal and to receive my written reasons for that purpose.  He did not, however, oppose an order for costs.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       25 July 2018