AUI17 v Minister for Immigration
[2019] FCCA 2997
•24 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUI17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2997 |
| Catchwords: MIGRATION – Protection visa – three applicant brothers seek visas – where grounds unparticularised and do not expose error in decision of Immigration Assessment Authority – applications dismissed. |
| Legislation: Migration Act 1958 (Cth), ss 5, 36, 65, 473DC, 474, 476 |
| Cases cited: BMV16 v Minister for Home Affairs [2018] FCAFC 90 BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 Craig v South Australia (1995) 184 CLR 163 CRW16 v Minister for Immigration and Border Protection [2018] FCA 710 DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 |
| First Applicant: | AUI17 |
| Second Applicant: | AUJ17 |
| Third Applicant: | AUK17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 362 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 14 October 2019 |
| Date of Last Submission: | 14 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2019 |
REPRESENTATION
| The Applicants: | In Person |
| Solicitor Advocate for the Respondents: | Mr Young |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 23 February 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 862 of 2017
| AUI17 |
First Applicant
| AUJ17 |
Second Applicant
| AUK17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 23 February 2017, the applicants who are brothers, seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 23 January 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant them Protection visas pursuant to s 65 of the Migration Act 1958 (Act).
The applicants, who are Sri Lankan citizens now aged 23, 20 and 17 years respectively are Tamils from a small village in Puttalam, North Western Province of Sri Lanka. Their parents are Hindu, and their grandmother is of the Christian Pentecostal faith.
The applicants claim that their village consisted mainly of Muslim and Sinhalese inhabitants and that they belonged to one of the few Tamil families in that village. Their parents conducted a small business making incense sticks which they sold for distribution throughout Sri Lanka.
On 29 April 2013, the applicants first came to Australia as unauthorised maritime arrivals. The first applicant participated in an entry interview on 4 October 2013.
On 5 October 2015, the first and second applicants made valid applications for Safe Haven Enterprise (subclass 790) visas. The third applicant was included in their applications as a member of their family unit.
Claims to protection
The first and second applicants attached statements to their applications outlining their claims to protection. The first applicant stated that:
a)he was constantly bullied at school in his village because of his Tamil ethnicity, which resulted in him leaving school early to help in the family business;
b)throughout his life, he was constantly harassed by the police and army personnel asking for his identity documents because he was suspected of involvement with the Tamil Tigers;
c)on one occasion, when he could not confirm his identity he was taken to the police station and beaten, and on another occasion his father was arrested and jailed for two months after there was a fight outside the house in which they were staying;
d)in October 2010, a group of about ten men armed with guns ransacked his family’s house, which his father reported to police;
e)the day after his father made the report to police, a person called Mogan came to his house and started to attack his father with a blunt knife;
f)a few months later two men came to his house, beat his father and stole a gold necklace (he had locked himself and his younger brother in a room);
g)in late 2010 or early 2011, a Sinhalese man fraudulently obtained the title to some of his family’s land and began to build a house on it. As the local police refused to help, his father had to retain a lawyer to take the matter to court. Whilst the court proceedings were in progress, another family built and occupied a house on the land;
h)in late 2012, when the applicant and his immediate family were holidaying in Colombo, a gangster called Nisthar Thatha came to his uncle’s house, beat his uncle and threatened to kill his family;
i)after the incident involving his uncle, the first applicant and his brothers engaged a people smuggler and travelled to Australia;
j)after arriving in Australia, men went to their family’s house, questioning their grandmother at gunpoint as to their whereabouts;
k)he has suffered severe discrimination because of his Tamil ethnicity and, if he returns to Sri Lanka, fears being tortured or subjected to serious harm by Nisthar Thatha and the authorities.
The second applicant’s statement outlined much the same claims as those detailed in the first applicant’s statement.
Following an invitation to do so, on 12 January 2016, the applicants attended an interview with a delegate of the Minister.
On 16 January 2016, the applicants’ migration agent provided a post-interview submission to the delegate.
Delegate’s decision
On 30 August 2016, a delegate of the Minister refused to grant the application and gave reasons for so doing. While the delegate accepted some of the applicants’ claims, the delegate also found that they may have embellished their story so as to strengthen their clams for protection.
The delegate’s reasons disclose the following:
a)although it was accepted that in 2010 the applicants’ house may have been damaged by plain-clothed soldiers and that their father may have been assaulted, the delegate did not accept that the army had engaged a local gangster (Mogan) to intimidate their father;
b)there was no other evidence apart from the applicants’ testimonies as to their claim of their house being invaded, and their testimonies as to this were inconsistent, conflicting and unreliable;
c)the delegate believed the applicants’ testimonies regarding the theft of their father’s gold necklace but considered the accounts to be problematic and inconsistent because of the differences between their written statements and the answers provided in their interview;
d)whilst the delegate accepted that the applicants’ father may have been the victim of an opportunistic robbery, the delegate did not accept that the incident was covered up by powerful people;
e)the delegate found that the applicants’ claim that Nisthar Thatha had beaten their cousin was based upon speculation, not supported by any evidence and was not factual;
f)the delegate noted that the applicants’ father appeared to be in most danger, but he had not experienced harm since a robbery in 2012 and had not sought asylum outside Sri Lanka, which meant their fear of harm due to their relationship with him lacked credibility;
g)the delegate accepted the applicants’ claim regarding their family’s land dispute was credible;
h)inconsistencies in the applicants’ testimonies could be due to trauma they experienced as young adults and minor inconsistencies could be discarded; however, there was significant concern about the likelihood of the events claimed by the applicants.
The delegate concluded that the applicants were not persons in respect of whom Australia owed protection obligations, either as refugees under s 36(2)(a) or by way of complementary protection under s 36(2)(aa).
Authority’s decision
As the applicants were deemed to be fast track applicants,[1] they were subject to the merits review framework and procedure set out in Part 7AA of the Act. The delegate’s decision was referred under Part 7AA to the Authority for a fast track review.
[1] Act, s 5(1).
By letter dated 6 September 2016, the Authority notified the applicants that the delegate’s decision had been referred to it for review. The applicants were provided a Practice Direction indicating the manner in which the Authority would conduct the review and steps which the applicants might take in the course of that review, including, by making submissions.
On 19 September 2016, the applicants’ migration lawyers made written submissions to the Authority.
On 21 January 2017, the Authority affirmed the delegate’s decision to refuse to grant the applicants Protection visas, providing a statement of its reasons for doing so (Reasons). By way of overview, the Authority:
a)accepted the applicants were Tamils from the Puttalam District: [11];
b)outlined the 2010 home invasion and found that the first applicant provided a “reasonably coherent and detailed account” which suggested he was “recounting a genuine personal experience”, and that the second applicant’s oral evidence was broadly consistent: [13]-[14];
c)accepted that Mogan enquired of the applicants’ father as to why he had gone to the police and attacked him with a blunt knife: [16];
d)noted in relation to the alleged theft of the necklace, that there were inconsistencies in the first applicant’s evidence as between his entry interview, the written statement attached to his visa application and his interview with the delegate: [19];
e)did not accept the applicants’ father’s necklace was stolen and found, and although the applicants’ testimony was vulnerable due to their age, this did not explain the inconsistencies in their accounts: [24];
f)accepted it was plausible that their father had been involved in a land dispute which was being dealt with in the Sri Lankan courts, but that did not result in the applicants facing a real chance of serious harm: [30];
g)due to significant inconsistencies in his evidence, the Authority did not accept that the first applicant was detained or beaten by police for failing to confirm his identity, or that he was at risk of serious harm due to his or his father’s previous interactions with police: [35];
h)considered the fact that the first applicant had failed to mention Nisthar Thatha in his entry interview undermined the credibility to the claim that the applicants fled Sri Lanka because they feared harm from Thatha: [40];
i)having not accepted the applicants’ claim respecting the gold necklace, did not accept that their grandmother had been threatened at gunpoint: [44];
j)considered claims that arose from the applicants’ Tamil ethnicity, but concluded that although the first applicant was bullied and had left school early, rejected the applicants’ claims and applied the UNHCR’s 2012 guideline for assessing the eligibility of Sri Lankans for asylum that there was no longer a presumption for protection simply because of Tamil ethnicity: [51]-[52];
k)also considered the likelihood that the applicants would be harmed by Sri Lankan authorities if they were to return as failed asylum seekers, and found that they would be detained and questioned at the airport and taken to the nearest Magistrates Court: [53]-[58].
The Authority found that the applicants were not persons to whom Australia owed protection obligations, and affirmed the decision to refuse to grant the visas.
Procedural history
On 23 February 2017, the applicants filed an application for judicial review of the Authority’s decision together with an affidavit affirmed by the first applicant to which he exhibited a copy of the Reasons but adduced no further evidence in support of the application for review.
By a Response filed on 8 March 2017, the Minister opposed the application on the stated basis that it failed to establish any jurisdictional error in the Authority’s decision.
On, 30 August 2017, orders were made, by consent, listing the matter for final hearing. Orders were made affording the applicants opportunities to file any amended application, affidavits and submissions, however, those opportunities were not taken.
On 30 September 2019, the Minister filed written submissions that were responsive to the grounds appearing in the application.
Applicable principles
If the Tribunal’s decision was a privative clause decision[2], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[3] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[4] Whether it should do so is a separate issue.
[2] Act, s 474(2).
[3]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[4] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, ,[5] and where appropriate, to order that the matter be remitted and reconsidered according to law.
[5]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of the particular visa are satisfied. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[6]
[6]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration
The first and second applicants were self-represented before me. They stated that their younger brother was at his school and was unable to attend court on account of his exams. The second applicant adopted the position of spokesman for his brothers and made submissions that I have considered. Initially the first and second applicants appeared without the assistance of an interpreter. Shortly after the commencement of the hearing an interpreter arrived. When this occurred I asked the applicants whether they had understood the events which had occurred during the hearing to this point and they confirmed that they had done so. They appeared not to require the assistance of an interpreter and proceeded on their own from that point forward.
As they were self-represented, I have re-examined the materials comprising the court book, the Reasons and application for review.
The application for review contained 3 grounds of review.
Ground 1 - adequacy and conduct of review
Ground 1 reads:
The Second Respondent constructively failed to review the First Respondent's decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.
Any substantive basis for the complaint made under Ground 1 was not informed by any particulars. In the absence of any particulars, Ground 1 could not succeed.[7]
[7]MZARG v Minister for Immigration and Border Protection [2018] FCA 624, [25]; BYM16 v Minister for Immigration and Border Protection [2018] FCA 326, [12]-[13]; DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, [4]-[11].
Ground 1 also misconceived the nature and scope of the review provided for by Part 7AA of the Act. The Minister correctly submitted that the Authority had conducted a de novo review of the SHEV application. For that reason, the assertion that the Authority was required to analyse or review the delegate’s decision misstated the nature of its function.[8]
[8]Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166, [48].
Further, the Authority was required to conduct the review on the basis of the referred materials; that is, on the basis of the papers before it. As a general rule, the Authority was not permitted to consider new information and was not obliged to inform the applicant(s) if it was considering taking a different view of the applicant’s claims to that which had been taken by the delegate.[9]
[9]DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, [70]-[73], [75]–[76].
Ground 1 is rejected.
Ground 2 – credibility
Ground 2 reads:
The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant's credibility was an important factor in the Second Respondent's decision that he was not a refugee, and an oral interview can give an insight into a person's credibility that is otherwise unavailable. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
By Ground 2 the applicants contend that the Authority denied the applicant procedural fairness and/or made an error of law in refusing to schedule an oral hearing in circumstances where an oral interview could have provided insight into the applicant’s credibility.
Again, this ground is misconceived. Section 473DC should be read, having regard to the aim of the Part 7AA, with its limited procedural fairness.[10]
[10]BMV16 v Minister for Home Affairs [2018] FCAFC 90, [81]; CRW16 v Minister for Immigration and Border Protection [2018] FCA 710. [42].
Contrary to this ground of review, it was open to the Authority to make adverse credibility findings and not invite the applicant to comment on its findings.[11] The present cases is not one where the Authority knew, or ought to have known, it did not have, but that the applicants were likely to have, an explanation for any inconsistencies in the evidence.[12] In the event, the Authorities decision did not involve making findings that were, in any material respect, in conflict with those of the delegate.
[11]DBE16 v Minister for Immigration and Border Protection [2017] FCA 942, [66].
[12]Cf., Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210.
Ground 2 is rejected.
Ground 3 – pending application for legal aid
Ground 3 reads:
I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.
This is not a proper ground of judicial review and identifies no error by the Authority. The ground was contained in an application filed on 23 February 2017 and was not amplified by any further evidence.
Ground 3 is rejected.
Conclusion
Before me, the second applicant stated that he had now completed his VCE and wished to make a better life for himself and his brothers in Australia. The first and second applicants presented as impressive young men who have a genuine desire to better themselves. Although the applicants arrived in Australia as irregular maritime arrivals, they may submit a further visa application from Sri Lanka. The application must be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 24 October 2019
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