AUH17 v Minister for Immigration
[2017] FCCA 2537
•19 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUH17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2537 |
| Catchwords: MIGRATION – Immigration Assessment Authority – open for the Authority to find that the new information did not satisfy the matters under s 473DD(b) – application of s 473DC and 473DD – no failure by the Authority to make a finding on an essential integer of the applicant’s claims – no jurisdictional error identified – second amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473DC, 463DD, 476 |
| Cases cited: BVZ16 v Minister for Immigration and Border Protection [2017] FCCA 958 |
| Applicant: | AUH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 543 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 19 October 2017 |
| Date of Last Submission: | 19 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu Stephen Hodges Solicitor |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
Leave to the applicant to rely upon the “2nd Amended Application” initialled and dated today by the Court and dispense with the need for the filing of an electronic copy of the same.
The 2nd Amended Application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 543 of 2017
| AUH17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
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 Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 1 February 2017 affirming a decision of the delegate not to grant the applicant a protection 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 13 October 2012 as an irregular maritime arrival. On 18 March 2016, the applicant made an application for protection. The applicant is of Tamil ethnicity and claimed to fear harm on the basis of an imputed association with friends and family who were members or conscripts of the LTTE. The applicant claimed his sister was conscripted by the LTTE and that she died in Action in 2000. The applicant claimed his father had died from injuries received after being beaten in a Sri Lankan Army camp. The applicant claimed that following the relocation of the remaining members of his family to another place, the family was harassed continually and forced to report to the local police.
The applicant claimed to have been shot at but not harmed by the Sri Lankan Army and on another occasion being beaten by an army officer. In around March 2009, the applicant claimed to have been approached by CID officers seeking a particular person and that the officers visited his family home, causing him to fear for his safety. The applicant also claimed that in early 2009 his friend was taken into custody by officers from the police Criminal Intelligence Division and the applicant believes that his friend was shot by the Sri Lankan authorities.
It was following these events that the applicant alleged that it had caused him to fear for his safety so he went into hiding. The applicant also claimed that his mother was taken into custody by authorities and appeared in Court and was released on payment of a security amount.
The delegate
On 16 September 2016, the delegate found the applicant failed to meet the criteria for the grant of the protection visa under the Act. The delegate expressly addressed the applicant’s claim of going into hiding because a friend was killed by the Sri Lankan authorities and identified inconsistencies in the applicant’s evidence and made adverse credibility findings. The delegate also referred to a letter written by the applicant’s sister and placed no weight on the same as evidence supporting the applicant’s claims.
The Authority
On 27 September 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter identified there were only limited circumstances in which the Authority could consider new information. The letter attached a face sheet and practice direction providing the applicant with an opportunity to put on new information and submissions.
Information before the Authority
The Authority identified the background to the visa application and identified having regard to the material referred by the secretary under s 473CB of the Act. The Authority identified information provided by the applicant following the letter dated 27 September 2016. The first was a statutory declaration dated 13 October 2016. Submissions were advanced in support of how that statutory declaration met the criteria under s 473DD of the Act. The Authority identified that part of the declaration responds to issues from the delegate’s decision and concluded that that was not new information and considered those aspects of the statutory declaration to be ones to which the Authority had regard.
The Authority made reference to a statement in the statutory declaration that there is a Court case on foot against the applicant which would exacerbate his situation. The Authority identified that this was not information before the delegate and the Authority identified the same as being new information. The Authority made reference to the facts that no explanation was provided as to why this new information was not or could not have been provided to the delegate. The Authority also observed that there is no explanation as to why it may be regarded as credible personal information but was not known, and had it been known, may have affected the consideration of the applicant’s claims. The Authority made reference to not being satisfied of the matter set out in s 473DD(b) of the Act and identified not considering that new information.
The Authority also referred to the submission received on 21 October 2016, part of which responded to the issues before the delegate and was considered by the Authority not to be new information and to which the Authority had regard. The Authority identified that the submission also contained information that predated the delegate’s decision which the Authority identified as being new information. The Authority was not satisfied in relation to the matters set out in s 473DD(b) of the Act and did not have regard to that new information.
The Authority then referred to a further submission received on 27 October 2016 as a result of the applicant engaging a new representative and identified that the submission in part addressed issues arising from the delegate’s decision and did not regard that as new information and had regard to the same. The Authority identified that the submission of 27 October 2016 included information that predated the delegate’s decision and was not satisfied in relation to the matters set out in s 473DD(b) of the Act and did not have regard to that new information.
Consideration of the applicant’s claims
The Authority identified the applicant’s claims and evidence and correctly set out the relevant law. The Authority accepted incidents occurred as alleged by the applicant in the 1990s, 2007 and 2008 but did not consider that the applicant now faces a real chance of harm if he returns to Sri Lanka.
The Authority made reference to the applicant’s claim that a friend had been taken away, beaten and shot by the SLA or CID and that he feared something similar happening to him. The Authority noted that it was put to the applicant that the information was inconsistent with his entry interview where he stated that he had a friend who was shot because he was an LTTE member who planted bombs. The Authority noted the applicant’s response, that this was a different person. The applicant was then asked why he had not mentioned the different person at the entry interview or on his statement of claims and the applicant proffered an explanation.
It was in those circumstances that the Authority identified, having listened to the audio recording, it did not accept the applicant’s statement in the statutory declaration to the Authority that the inconsistencies regarding his friend’s LTTE links arose from an interpreting error. The Authority did not accept that the inconsistencies could be characterised as minor. The Authority made express reference to the applicant saying that the friend, who was a member of the resistance and used to set bombs was a particular person.
The Authority found the applicant had not provided any plausible explanation for the inconsistencies outlined and did not accept the information as credible. The Authority found the applicant did not have a friend who was taken away, beaten and shot by the Sri Lankan authorities. The Authority did not accept that the Sri Lankan authorities including the SLA and CID searched for the applicant at Techno World or at his home looking for him as a result of his association with a friend he claims was shot, or for any other reason.
The Authority found the Sri Lankan authorities were not searching for the applicant and did not accept that the applicant remained in hiding for some two years. The Authority was not satisfied that the applicant faces a real chance of harm arising from the incidents claimed by the applicant.
The Authority made reference to a letter from a Member of Parliament, as well as a letter of his sister. In relation to the letter of the sister, the Authority noted that it was not written contemporaneously with the events it described and that the complaint was made several years after the claimed events. The Authority observed, in light of those matters and the finding that the Sri Lankan authorities were not searching for the applicant, the Authority placed no weight on either letter.
The Authority was not satisfied the applicant faces a real chance of harm on the basis of being a Tamil. The Authority was not satisfied the applicant faces a real chance of harm arising from his mother being taken into custody and released on payment of a security amount. The Authority accepted that the applicant would be returning to Sri Lanka as a failed asylum seeker who left Sri Lanka illegally.
The Authority accepted that the applicant may be charged under the Immigrants and Emigrants Act and that there was a chance he may be held in detention for a short period. The Authority found the brief period of detention did not rise to the level of threat to his life or liberty, or to significant physical harassment or ill treatment or any other form of serious harm for the applicant.
The Authority was not satisfied that being required to pay a fine or provide a surety amounts to serious harm, nor was the Authority satisfied that the payment of a fine, being held in detention for a short period and questioning cumulatively amounts to serious harm. The Authority found the Immigrants and Emigrants Act is a law that applies to all Sri Lankans and found that the treatment that the applicant faces as a consequence of the Act is not persecution within the meaning of the Act.
The Authority did not accept the applicant had any real or perceived connection to the LTTE. The Authority did not accept the applicant would be imputed with separatist or anti-government dissident beliefs by the authorities because of the manner of his departure from Sri Lanka, his extended residence in a Western country, imputed asylum seeking there or his connection to his sister, either individually or cumulatively. The Authority found the applicant does not face a real chance of persecution from Sri Lankan authorities either as a failed asylum seeker or a returnee from the West or for any other reason.
The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1). The Authority found the applicant did not meet the criteria under s 36(2)(a) of the Act.
The Authority found there are not 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 the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The grounds of the second amended application are as follows:
Ground 1
The IAA' s finding at [CB 132,18] that the Sri Lankan authorities were not searching for the applicant is tainted with jurisdictional error as this finding failed to consider essential integers of the applicant's claims.
Particulars
1. At [10], the applicant claimed that in around March 2009, CID officers approached him seeking someone known as 'Raj'.
2. The applicant further claimed, at [10], that he is commonly known as 'Raj'.
3. The IAA at [CB 132, 18] did not accept that the Sri Lankan authorities including the SLA and CID searched for the applicant “as a result of his association with a friend he claims was shot or for any other reason.”
4. The applicant did not state in his statement of claims that the incident that occurred in March 2009 [CB 57, 18] was connected to his “friend who was taken away, beaten and shot by Sri Lankan authorities" [CB 132, 18], though both incidents occurred during the same time period.
5. The IAA in its assessment at [CB 132, 18], failed to consider the following,
a. that the incident that occurred in March 2009 may not be connected or was caused by the incident that occurred in "early 2009" [CB 57, 17].
b. the IAA provided its reasons at [CB 132, 18] for not accepting the incident that occurred in “early 2009" [CB 57, 17]. However, it was not open to link the finding it made relating to the incident that occurred in “early 2009” with the incident that occurred in March 2009 because this was not open on the evidence.
c. Even if the incident that occurred in March 2009 was connected to the incident that occurred in “early 2009,” the IAA failed in its assessment to consider an integer of the applicant's claims namely that the Sri Lankan authorities who came after him knew him as “Raj".
d. On the basis of the UNHCR guidelines considered by the IAA and an integer of a claim that was accepted by the IAA at [CB 133, 24], the IAA ought to have considered that the incident that occurred in March 2009 was due to the applicant's familial link to the LTTE.
6. At [CB 131, 17], the IAA rejected the applicant's answer to its consideration that having travelled to Qatar in April 2010 and returning to Sri Lanka in July 2010 without facing issues passing through immigration and border security, he was not a person of interest to Sri Lankan authorities, which resulted in the finding at [CB 132, 18]
a. The IAA did not consider the applicant's claim that “hey [the authorities] probably didn't know who I was"
7. The IAA erred in its decision by failing to consider that the reason why the applicant did not face issues in immigration and border security was because he was known to the authorities as 'Raj' .
8. The March 2009 incident required a separate independent assessment which the IAA did not do
a. as the applicant stated in his entry interview at [CB 11, 6] “After my sister died we were accused of being LTTE supporters and would have to attend enquiries to get our ID cards back"
b. as the applicant stated in his entry interview at [CB 11, 61 that the sister fought the government and was killed in 2000 implying the applicant was a member of an LTTE martyr family. At CB 112 the applicant more explicitly states that his family “was seen as a “martyr” family by the authorities.
c. At CB 87 in the delegate's decision record the delegate states “The applicant submits that as a result of his friend being killed and the authorities looking for him he went into hiding, implying the authorities had other reasons as well to look for the applicant.
d. At CB 112, 2 it is acknowledged that the statutory declaration dated 13 October 2016 states “The delegate accepted that I was hiding after the killing of mv friend “Alex".
e. It is submitted that the March 2009 incident required an independent assessment as the reason the applicant was targeted by the authorities was not only linked to the killing of the applicant’s friend, there were other reasons for targeting the applicant as the applicant was subject to ongoing harassment [CB 11,6].
Ground 3
The IAA committed jurisdictional error when exercising its discretion at [CB] 129,5] to not consider “new information" put forward by the applicant.
Particulars
1. The applicant provided new information (contained in a statutory declaration) to the IAA which referred to an ongoing court case [CB 113,7].
2. The IAA accepted the information referred to at 1. above was “new information.”
3. The IAA was not satisfied that the new information met the s473DD(b) criterion of the Migration Act [CB 129, 5].
4. s473DD(b) has two limbs.
5. The applicant did not provide an explanation as to why the new information was not and could not have been provided to the delegate, therefore the IAA was correct on this point, that is s473DD(b)(i) was not satisfied.
6. The new information put forward to the IAA however was ''personal information" as it related to an ongoing court case against the applicant. The fact that the new information that was personal to the applicant was conveyed to the IAA via a statutory declaration is indicative that the applicant has attempted to satisfy the IAA that the information so provided was not only personal information but that it was also credible.
7. Therefore, for these reasons it is submitted that the applicant had attempted to satisfy s473DD(b) (ii) criterion.
8. Whether the ''personal information” is “credible” is a finding that the IAA ought to have made, this the IAA did not do.
9. The reason the IAA did not make a finding regarding the credibility of the personal information put forward was because “No explanation was provided ... why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant 's claims".
Ground 4
The IAA committed jurisdictional error at [CB 132, 21] in its reasoning in placing “no weight” on documentary evidence put forward by the applicant in support of an essential integer of a claim.
Particulars
1. The applicant put forward documentary evidence in support of his claims for protection written by his sister in April 2016 [CB 65].
2. The IAA placed no weight on this piece of documentary evidence because “The letter was not written contemporaneously with the events it describes” [CB 132, 21].
3. It was not open for the IAA to give no weight because the letter was not written contemporaneously with the events it describes.
4. The IAA erred in its reasoning as it gave no weight to documentary evidence for the “wrong reason.”
Mr Tambimuttu, the solicitor for the applicant, confirmed that ground 2 was not pressed.
Consideration
Ground 1
In relation to ground 1, Mr Tambimuttu sought to argue that there was a separate and distinct incident that occurred in March 2009 that should have been the subject of separate findings and that it was an integer of the applicant’s claims upon which the Authority had made no finding. Mr Tambimuttu took the Court to the statutory declaration which identified, in early 2009, the applicant’s friend was taken into custody by the CID personnel and was killed around June 2009.
The applicant identified that around March 2009, while studying at Techno World, he was approached by CID personnel who made enquiries about a particular person. The applicant said that he told them there was no one there by that name and that the CID personnel went around Techno World making enquiries and that they went to the applicant’s house making inquiries about a particular person with his sister. The applicant, in the statutory declaration, identified that he was frightened to stay at his house and moved to his aunt’s house and ceased attending computer classes and was in hiding, moving from one location to another.
The Authority’s reasons correctly identified the two incidents in early 2009. Those two incidents on a fair reading, were interconnected in relation to the applicant’s claim that he then went into hiding. The Authority in its rejection of the applicant’s claims, made express reference to Techno World. The adverse finding by the Authority, which rejected the applicant’s claim that he went into hiding and its rejection of the alleged incident in respect of his friend were findings that subsumed the incident in early March in relation to CID personnel making inquiries about a particular person.
There was no component integer of the applicant’s claims upon which the Authority failed to make a finding. The applicant’s statutory declaration clearly linked the enquiries by the CID personnel to the incident in respect of which he alleged his friend had been taken into custody by the CID and killed around June 2009.
The Authority’s reasons are not to be read with a keen eye for error. The Authority clearly identified logical and cogent reasons for credibility concerns in relation to the applicant’s claims in respect of his friend being shot. It was following those adverse credibility findings that the Authority concluded that the Authority did not accept the Sri Lankan authorities, including the SLA and CID searched for the applicant at Techno World or at his home looking for him as a result of his association with his friend, who he claims was shot, or for any other reason.
There was no failure by the Authority to consider the applicant’s claims and evidence in respect of the adverse findings made in relation to the applicant’s claims. The two 2009 incidents were clearly subsumed in the findings made as a result of the reference to Techno World, and there was no failure by the Authority to consider an essential integer of the applicant’s claims. No jurisdictional error as alleged in ground 1 is made out.
Ground 3
In relation to ground 3, Mr Tambimuttu sought to rely upon the decision in BVZ16 v Minister for Immigration and Border Protection [2017] FCCA 958 (“BVZ16”) in arguing that the Authority had erroneously exercised its power under s 473DD of the Act in excluding as new information the applicant’s reference to a Court case against the applicant.
I accept the first respondent’s submissions that the decision in BVZ16 is clearly distinguishable. This is not a case where there was reasoning of the Authority that could be said to support a finding of a limited meaning of exceptional circumstances, nor do the Authority’s reasons support a finding that the Authority failed to consider the whole of s 473DD. The Authority’s reasons expressly refer to s 473DD(b) of the Act and in that regard, the reference to matters in the Authority’s reasons was clearly a reference to the two limbs in s 473DD of the Act.
Further, the statutory declaration containing this new information proffered no explanation and no submission was advanced as to why that new information met the criteria under s 473DD of the Act. The exercise of the Authority’s powers in relation to s 473DD of the Act in holding the information concerning the Court case as new information, taking into account s 473DC of the Act, was open to the Authority. There was no misconstruction by the Authority of the power under s 473DD of the Act and the finding that the new information referred to did not satisfy the matters under s 473DD of the Act cannot be said to be illogical or unreasonable.
This is a case where the Court granted leave to Mr Tambimuttu to rely upon an amended application adding an additional ground and an additional particular and deleting one ground which was occurred at the start of the hearing today. No identification was foreshadowed at that time that there was an additional ground that Mr Tambimuttu wished to raise.
In the course of submissions, Mr Tambimuttu identified that there was a further ground that he wished to raise in relation to the Authority’s exercise of its power, which was to the effect that there was a failure to exercise the discretion under s 473DC(3) of the Act because of information given about Court proceedings involving the applicant’s mother. That information was information provided to the delegate. No request was made for an exercise of discretion under s 473DC(3) of the Act to the Authority.
It was in those circumstances that the Court indicated that it would not permit a further ground to be raised orally in respect of which no earlier notice had been given by Mr Tambimuttu. Even if such ground had been raised, for the reasons I have given it was without merit and could not make out any jurisdictional error.
The Court made orders in respect of the filing of an amended application which the Court expects to be complied with. It is for the benefit of both the moving party and for the party seeking to respond to any amended application, as well as the Court, that the grounds of application upon which an applicant wishes to rely for jurisdictional error are clearly identified.
It is not appropriate to keep up one’s sleeve a further oral ground which is not disclosed at a time when the Court is being asked to exercise a discretion to permit a second amended application which does not include any reference to the undisclosed ground. It is for these reasons that Mr Tambimuttu was not permitted by the Court to formally amend the second amended application to raise the further ground.
Ground 4
In relation to ground 4, Mr Tambimuttu submitted that the consideration identified in the Authority’s reasons in respect of the sister’s letter not being contemporaneous was an irrelevant consideration. Mr Tambimuttu characterised it in oral submissions as the wrong reason. Mr Tambimuttu upon concern expressed by the Court as to whether such a ground was arguable, clarified that what he was seeking to argue was that the consideration of whether the letter was contemporaneous was either an irrelevant consideration or not a reasonable or logical basis upon which to give no weight to the sister’s letter.
The reasoning in support of the Authority giving no weight to the sister’s letter in the context of the credibility findings made by the Authority and in light of the lack of contemporaneity was both logical and rational as well as being reasonable. No jurisdictional error as alleged in ground 4 is made out.
Conclusion
As the second amended application fails to make out any jurisdictional error, the second amended application is dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 24 October 2017
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