AUU17 v Minister for Immigration

[2018] FCCA 236

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUU17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 236

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.46A, 473DA, 473DB, 473DE, 473GA, 473GB

Cases cited:

AFK16 v Minister for Immigration & Anor [2016] FCCA 1826

Minister for Immigration v CRY16 [2017] FCAFC 210

Selvadurai v Minister for Immigration (1994) 34 ALD 347

Applicant: AUU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 562 of 2017

Judgment of: Judge Driver

Hearing date: 2 February 2018

Delivered at: Sydney

Delivered on: 2 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary of DLA Piper

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 $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 562 of 2017

AUU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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) made on 2 February 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of legal submissions filed on 23 January 2018. 

3. The applicant is a male citizen of Sri Lanka.[1]  He arrived on Cocos Island on 2 April 2013 as an Unauthorised Maritime Arrival.[2]

   [1] Court Book (CB) 6.

   [2] CB 176.

4. By letter dated 3 March 2016, the applicant was notified that the s.46A bar had been lifted, and he was invited to apply for a temporary protection (subclass 785) visa or a safe haven enterprise visa (SHEV).[3]

   [3] CB 30.

5. On 28 April 2016, the applicant lodged an application for a SHEV.[4]  The applicant’s claims to fear harm were set out in a statement dated 28 April 2016 accompanying his application.[5]  In summary, the applicant claimed to fear harm in Sri Lanka as an ethnic Tamil male from the north with a past suspected Liberation Tigers of Tamil Eelam (LTTE) profile, his illegal travel by boat to Australia and as a failed asylum seeker.

   [4] CB 36.

   [5] CB 75.

6. The applicant was interviewed by the delegate on 1 September 2016.  At the interview, the applicant claimed that the Sri Lankan authorities would be aware that he was in an Australian immigration detention centre and that he therefore left for Australia illegally by boat, as a result of the Minister’s Department’s data breach in February 2014.

7. On 21 September 2016, the delegate refused the application for a SHEV.[6]

   [6] CB 176.

8. The application was referred to the Authority for review on 26 September 2016.[7]

   [7] CB 194.

9. On 16 October 2016, the applicant provided a submission to the Authority.[8]  The submission repeated the applicant’s claims, set out the applicant’s concerns with the delegate’s decision, and expressed the applicant’s willingness to attend an interview before the Authority.  The submission also attached copies of the two DFAT country reports which were provided to the Minister’s Department in post-interview submissions. 

   [8] CB 198.

10. On 2 February 2017, the Authority affirmed the decision under review.[9]

    [9] CB 245.

The decision of the Authority

1. The Authority was satisfied that the applicant’s family travelled to India to avoid being harmed in the conflict, and accepted that the applicant had faced some trauma in the past. [10]  The Authority accepted that the applicant and his family had been unable to regularise their status in India and that they had experienced hardship and difficult living conditions during their time in the country.  The Authority also accepted that the applicant had no visa or right to enter and reside in India.[11]

   [10] At [11].

   [11] At [10].

2. The Authority accepted that, on return to Sri Lanka, the applicant was detained in 2011 at a checkpoint near his home town.  The Authority was satisfied that after questioning the applicant was determined by the Criminal Investigation Department (CID) as not being associated or connected to the LTTE.[12]  The Authority accepted the applicant’s claim that the CID visited his brother’s home for further monitoring, and that the applicant was subject to routine monitoring from the authorities.  The Authority found that the applicant was able to avoid any further harm from the authorities because he had no adverse profile that was of serious concern to the CID or other authorities following his earlier arrest and interrogation.[13]

   [12] At [24].

   [13] At [25].

3. The Authority was satisfied that the applicant would have no adverse political or security profile due to his illegal departure in 1990, his time in India, or as an asylum seeker returning to Sri Lankan from overseas.  The Authority accordingly found that the applicant would not face a real chance of being seriously harmed for these reasons if he returned to Sri Lanka.[14]

   [14] At [28].

4. On the applicant’s evidence, the Authority was satisfied that he had no real or perceived links to the LTTE other than his ethnicity and origin from a former LTTE-controlled area.[15]  The Authority found that there was no real chance of the applicant being seriously harmed for any of the reasons set out above.[16]

   [15] At [29].

   [16] At [30].

5. The Authority accepted that the applicant was a Tamil from the north of the country, and was satisfied that he would live in his home town there if he was returned to Sri Lanka.  The Authority was satisfied the applicant would not face further interrogation or that the monitoring he experienced in 2011 would continue if he returned to his home town.  As a Tamil male returning to live in the north, the Authority accepted that the applicant may encounter a degree of societal discrimination in the form of questioning and low level monitoring on return.  However, the Authority was not satisfied that these factors would, separately or cumulatively, constitute serious harm, or that there was any real chance of the applicant being seriously harmed on these bases.[17]

   [17] At [33].

6. The Authority found that there was not a real chance of the applicant being harmed for reasons of his ethnicity, or as a Tamil from the north of Sri Lanka, for any actual or perceived connection to the LTTE, or any other adverse political, security or other profile, including having regard to his illegal departure in 1990, his time as a refugee in India, his experiences with the CID in 2011-2012, or any other aspect of his profile.[18]

   [18] At [34].

7. The Authority noted that the evidence before it clearly indicated that the applicant departed Sri Lanka legally using his passport in 2012.  The Authority accepted that the applicant subsequently travelled by boat from India to Australia, and the Sri Lankan authorities could infer this.  The Authority however noted that there was no information before it to indicate that this would constitute a breach of the Immigrants & Emigrants Act.  The Authority was not satisfied that the applicant would face any fine, detention or other penalty under the Immigrants & Emigrants Act, or any other law, for any of the reasons claimed.  As such, the Authority did not accept the applicant’s claims relating to harm he would face in detention, or that he would have difficulties paying any fine or obtaining bail or surety due to a lack of support from his brother or other family members.[19]

   [19] At [40].

8. The Authority accepted that the applicant may be questioned on return to Sri Lanka as part of the airport screening process, for reason that he would be returning to Sri Lanka without his original passport (which was left in India).  The Authority accepted that, through these processes, it was possible the authorities could identify that the applicant was previously questioned and monitored by the CID in 2011, and that there may be evidence he and his family left Sri Lanka illegally in 1990.  However, the Authority was satisfied it would again be determined that the applicant had no connection to the LTTE, or any adverse political or security profile, and that he would not be subject to any additional detention, investigation or penalty, because of his past illegal departure in 1990 or his detention and questioning by the CID in 2011.  The Authority found that there was no real chance of the applicant being seriously harmed for these reasons.[20]

   [20] At [41].

9. Given the privacy breach and the time the applicant spent in Australia, the Authority accepted there was a possibility that the applicant would be assessed by the Sri Lankan authorities as having sought asylum in Australia and/or having been in immigration detention.  The Authority was, however, satisfied that there was not a real chance of the applicant being seriously harmed on the basis that he sought asylum in Australia, or was in immigration detention during this time.[21]  The Authority was satisfied that, as the applicant did not leave the country illegally, and he has no adverse political or security profile, there was no real chance he would be detained and suffer serious harm in detention on return to Sri Lanka.[22]

   [21] At [42].

   [22] At [43].

10. The Authority considered the applicant’s claims cumulatively, and concluded that there was no real chance of the applicant being seriously harmed for reasons of his past history and profile, for seeking asylum in Australia or being in immigration detention, or for departing Sri Lanka legally and travelling by boat between India and Australia.[23]

    [23] At [44].

11. Turning to complementary protection, the Authority accepted that the applicant may face a degree of societal discrimination or questioning and monitoring by the authorities on his return to Sri Lanka but did not accept that any low level discrimination or questioning and monitoring the applicant may face on return to Sri Lanka would constitute significant harm, whether considered separately or cumulatively.[24]

    [24] At [49].

12. The Authority found that the applicant would not face significant harm on account of any adverse political or security profile (including his past detention by the CID), any actual or imputed opinion or connection to the LTTE, his ethnicity as a Tamil, as a Tamil male from the north, as a result of his illegal departure from Sri Lanka in 1990 or his subsequent legal departure in 2012 and travel by boat between India and Australia, or for seeking asylum in Australia and/or being in immigration detention, for the same reasons as those previously given.[25]

    [25] At [50].

The present proceedings

1. These proceedings began with a show cause application filed on 24 February 2017.  The applicant now relies upon an amended application filed on 17 August 2017.  There are three grounds in the amended application: 

   Ground 1

   The IAA has committed jurisdictional error in my case. It has declined its jurisdiction in my case as it has failed to make a finding/proper evaluation, as the IAA is required by law, on my central refugee claims although I have submitted reliable evidence to substantiate my central refugee claims: They are:

   I was born in [home town] in Vavuniya district in Sri Lanka. I am a Tamil male from the north of the country. In 1990, my family and I travelled by boat to India due to fighting between the Sri Lankan Army and the LTTE and to save our lives. My older brother went missing/ran away during this time and did not travel with us. I later found out that his brother stayed with a grandparent.

   My family and I lived in refugee camps in India without any status. We had no freedom of movement and police checked on us regularly to see if we were in the camp. The Police were suspicious of the refugees and accused us whenever incidents happened in the area. We were sometimes confined in the camps.

   In 2007 I was assaulted by the 'Q Branch' of the Indian police as I was not in the refugee camp at the time of checking. I was late returning from prayers. I obtained a Sri Lankan passport in 2007 from the Sri Lankan Consulate in India. I travelled on the passport in 2011. The passport is in India.

   On return to Sri Lanka, I was questioned by the CID at the [home town] checkpoint. I was questioned about why I went to India, whether my family or I had any connection with the LTTE, and why my family remained in India. I was held for five hours. I was released on the condition that I attend there when required by the CID.

   I was warned by the CID not to leave Sri Lanka by boat again. In April 2012, I returned to India as I feared to remain in Sri Lanka due to ongoing human rights violations against Tamils, and Tamils in the north of the country.

   When my visa expired, I was told to leave India. I hid until I departed the country on 8 March 2013. I left India by boat and arrived in Australia on 2 April 2013.

   I fear that if I am returned to Sri Lanka, I would be detained at Colombo airport for my illegal departure to Australia. I would be interrogated about why I was in India and whether I was trained as an LTTE fighter in India or had any connection to the LTTE.

   The authorities at the airport will contact my home area, and they will be informed of my previous arrest and detention on suspicion of LTTE involvement and/or my illegal travel by boat to Australia to seek asylum.

   I would be harmed by the Sri Lanka authorities as they have a normal practice of harming Tamils they have suspicions about.

   I would also face harm as an ethnic Tamil male from the north with a past suspected of LTTE profile. There is independent and reliable information that indicates there are potential risks of physical violence in prison for an ethnic Tamil in my similar circumstances.

   I fear I will suffer continually in detention until a relative or friend bails me. I fear significant harm, including imprisonment and fine for my departure.

   I suffered a lot as a refugee in India and I cannot go back there as I have no legal right to re-enter the country. I am not willing to go to Sri Lanka as I fear for my life. I have experienced trauma living as a refugee since my childhood and because of my fear in returning to Sri Lanka.

   Ground 2

   When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me for an interview/invitation to comment on, or respond to the adverse information on which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments relating to the issues and relied on this to refuse my protection visa in relation to my referred application with the IAA.

   I indicated to the IAA that I was willing to provide further evidence to substantive my refugee claims being reviewed by the IAA.

   Ground 3

   Some findings, inferences, conclusions and reasoning of the IAA being occurred in the absence of evidence and/or supporting materials.

   A reasonable IAA reviewer might reasonably arrive at a divergent conclusion on all the information and evidence before the IAA.

   Particulars

   The IAA's reasoning and conclusions are substantially based on foot notes cited below the reason and findings in the IAA's decision.

   I need my protection visa interview CDS to listen it and I also need to closely read the full evidence cited as footnotes in the IAA's decision which will enable me to provide particulars of my grounds in my submission to the court when the court orders me to do so.

2. I have before me as evidence the affidavit filed by the applicant with his original application and the court book filed by the Minister on 26 July 2017. 

3. Both the applicant and the Minister prepared legal submissions for the purposes of today’s hearing.  Those of the applicant were handed up in Court during the hearing. 

4. The applicant’s written submissions depart somewhat from the grounds of review and I have considered the submissions as raising an additional ground.  To a significant extent, the applicant’s complaints about the Authority decision cavil with the merits of that decision.  That is certainly true in relation to the first ground.  In the second ground, the applicant takes issue with the process followed by the Authority.  While the applicant complains that he was not invited to a hearing by the Authority, the statutory code under which the Authority operates generally prevents a hearing being conducted.  Neither is it apparent that there was any adverse information requiring disclosure to the applicant by the Authority. 

5. The third ground in the amended application is as the Minister notes, not entirely clear.  The only element potentially arising from that ground which might have pointed to an arguable case of jurisdictional error concerned the Authority’s extensive reference to country information in footnotes to its decision.  The Authority notes at [4] of its decision[26] that two country reports were provided by the applicant to the Authority with his submissions.  The Authority notes that those reports were before the delegate, and it was satisfied that they were not new information, and they were considered.

   [26] CB 246.

6. The question in my mind was whether all of the other reports referenced in the footnotes in the Authority decision were likewise before the delegate and hence not new information.  This was something which I asked the Minister’s solicitor to check during an adjournment of the hearing.  After that adjournment, the Minister’s solicitor was able to establish that all of the country information referred to by the Authority in its reasons was before the delegate.  This was also confirmed by my Deputy Associate who had independently checked the two decisions. 

7. There is, in my view, no substance to the other assertions in Ground 3.

8. In his written submissions, the applicant asserts that the Authority acted unreasonably and failed to take into account relevant information.  The applicant goes on to submit that he would receive harsh punishment on return to Sri Lanka because he had departed twice illegally.  That assertion was considered by the Authority which took the view that the applicant’s second departure from Sri Lanka was, in fact, lawful using a Sri Lankan passport which was left in India prior to the applicant’s departure from there to Australia.

9. The Authority reasoned that the Immigrants & Emigrants Act has nothing to say about illegal departure from India.  The Authority reasoned that while the Sri Lankan authorities may be aware that the applicant had sought protection in Australia because of the data breach in 2014, he would not be at risk of serious or significant harm by reason of that.  I see no arguable case of error by the Authority in relation to that issue.

10. In other respects, I agree with the Minister’s submissions in relation to the grounds of review advanced. 

Ground 1

1. Ground 1 asserts that the Authority declined its jurisdiction and failed to make a finding and/or properly evaluate the applicant’s claims, despite the applicant having submitted reliable evidence to substantiate his claims.  Ground 1 goes on to restate the applicant’s claims for protection. 

2. Properly understood, this ground goes no higher than to disagree with the Authority’s factual findings and accordingly seeks impermissible merits review.  The Authority considered the totality of the applicant’s claims and made findings of fact open to it on the evidence and material before it.

1. At its highest, this ground could also be seen to allege a failure to consider evidence.  The applicant has not pointed to any evidence that the Authority overlooked and accordingly, such an allegation cannot be established. 

Ground 2

1. Ground 2 takes issue with the fact that the Authority did not invite the applicant to an interview and/or invite the applicant to comment on or respond to adverse information.  The applicant has failed to establish any arguable case of error by the Authority in this regard.

2. Section 473DA of the Migration Act 1958 (Cth) (Migration Act) states that Division 3 (together with ss.473GA and 473GB) is taken to be “an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority”.

3. The exhaustive statement of the natural justice hearing rule contained in s.473DA of the Migration Act excludes the principles of common law procedural fairness in relation to the fast track review process.[27] Accordingly, the Authority was not obliged to raise its concerns with the applicant for him to address, and there was no new information relied upon by the Authority which could have enlivened its obligations under s.473DE. In such circumstances, the Authority was not obliged to conduct an interview with the applicant, pursuant to s.473DB nor was it obliged to get new information from the applicant.

   [27] AFK16 v Minister for Immigration & Anor [2016] FCCA 1826.

4. Notwithstanding the above, the Authority retained discretionary powers to get new information from the applicant and/or conduct an interview with the applicant:

   a)an Authority may err if it fails to consider exercising its discretion to disclose information or issues, or to invite new information, where that failure was unreasonable;[28]

   b)in the circumstances of this case, the Authority considered the applicant’s statement that he was willing to attend an interview before the Authority.[29]  The Authority found that an interview was neither necessary nor required in the circumstances of this case given no new issues had arisen and in light of the submissions provided by the applicant to the Authority in support of his claims; and

   c)the reasons of the Authority contain an evident and intelligible justification for the refusal to exercise its discretion and cannot be said to be unreasonable.

   [28] Minister for Immigration v CRY16 [2017] FCAFC 210 at [67] and [82].

   [29] At [5].

Ground 3

1. Ground 3 raises three separate complaints and a request.

2. The first complaint appears to be that the Authority’s findings were not based on evidence and/or that the Authority failed to consider supporting materials.  These complaints are not particularised.  The Authority was not required to have rebutting evidence.[30]  In circumstances where the applicant has not pointed to any supporting material that the Authority failed to consider, this complaint fails to reveal any arguable error by the Authority.

   [30] Selvadurai v Minister for Immigration (1994) 34 ALD 347 at 348 (Heerey J).

3. The second complaint appears to be an attempt to argue unreasonableness, however it is framed as precisely what is not seen to be unreasonable.  That is, the fact that a different decision maker might have come to a different review, does not make that decision unreasonable.  This complaint reveals no arguable error by the Authority.

4. The third complaint, favourably interpreted, could be a complaint about the Authority’s reliance on country information as the footnotes in the decision contain references to country information.  However, a complaint that the Authority relied on country information does not of itself point to a jurisdictional error and no jurisdictional error is otherwise articulated.

5. In respect of the applicant’s request contained within this ground, the applicant confirmed by email that he requested the audio recording of the delegate’s interview and this was sent to him by post on 27 September 2017.

Conclusion

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

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time the application was filed.  The applicant stated that he would not be able to pay the costs immediately.  I will not require payment of the costs within any particular time.

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 $3,606.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       5 February 2018