Avn16 v Minister for Immigration

[2016] FCCA 2878

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVN16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2878

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether the Immigration Assessment Authority’s decision is affected by jurisdictional error – whether the Immigration Assessment Authority’s finding that the applicant was not at risk of harm upon return to Sri Lanka was open to it – whether the Immigration Assessment Authority erred in finding that there were no exceptional circumstances to justify considering the applicant’s additional information under section 473DD of the Migration Act 1958 (Cth) – whether the Immigration Assessment Authority incorrectly applied the test in section 473DD of the Migration Act 1958 (Cth) in finding that the applicant’s additional information could have been provided to the Department prior to the Delegate’s decision – whether the Immigration Assessment Authority’s finding that the applicant’s additional information was not credible personal information not previously known was open to it – whether the Immigration Assessment Authority’s finding that the there was no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation on the applicant for the purposes of section 36(2)(aa) of the Migration Act 1958 (Cth) was open to it – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 349, 357A, 359A, 415, 422B, 424A, 474, 476, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 437DD, 73DE, 473FA, 473GA, 473GB

Cases Cited:
SZTALv Minister for Immigration and Border Protection & Anor [2016] FCAFC 69

Applicant: AVN16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 863 of 2016

Judgment of: Judge Emmett

Hearing date: 8 November 2016

Date of Last Submission: 8 November 2016

Delivered at: Sydney

Delivered on: 8 November 2016

REPRESENTATION

Counsel for the Applicant: Mr Ashok Kumar (direct access)

Counsel for the Respondents: Mr Bora Kaplan

Solicitors for the Respondents: Mills Oakley Lawyers

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 863 of 2016

AVN16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 18 March 2016 (“the Authority”) which affirmed a decision of a delegate of the first respondent (“the Delegate”) to refuse to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

2. The background of this matter and the relevant legislative scheme have been comprehensively and helpfully set out by counsel for the first respondent in written submissions filed on 31 October 2016, as follows:

   “Background matters

   3. The applicant is a national of Sri Lanka, who entered Australia as an unauthorised maritime arrival on 17 August 2012: Court Book (CB) 89 [3].

   4. On 21 October 2012, the applicant participated in an entry interview with an officer within the Minister’s department (Department):  CB 90 [3].

   5. On 20 August 2015, the Department wrote to the applicant to advise him that the Minister had exercised his power under s 46A of the Migration Act 1958 (Cth) (Act) to permit him to make a valid application for a visa, and to invite him to apply for, relevantly, an SHE visa:  CB 1-7. 

   6. The applicant applied for an SHE visa on 15 September 2015:  CB 8-46.  In support of his application, the applicant provided a statement dated 9 September 2015 in which he set out his claims for protection:  CB 47-51.

   7. On 25 November 2015, the Department wrote to the applicant to invite him to attend an interview with the Minister’s delegate on 17 December 2015:  CB 77-84.

   8. On 23 December 2015, the delegate contacted the applicant by telephone and asked him some further questions in relation to his visa application: CB 85.  During this conversation, the applicant claimed to fear harm on the basis of his Hindu religious beliefs—a new claim.

   9. On 5 February 2016, the delegate made a decision to refuse to grant an SHE visa to the applicant:  CB 89-120.  He rejected the applicant’s claims to fear persecution on the basis of his Tamil ethnicity, Hindu religion, membership of the particular social group comprising failed asylum seekers, or his imputed anti-Tamil Makkal Viduthalai Pulikal (TMVP) political opinion.

   10. On the same day, the Minister referred the delegate’s decision, being a fast track reviewable decision, to the IAA:  CB 129.

   11. On 18 February 2016, the IAA wrote to the applicant and, after having referred to the conversation between the Minister’s delegate and the applicant on 23 December 2015, asked him to provide details as to why he claimed to fear harm in Sri Lanka on the basis of his Hindu religion and why that claim had not been raised previously:  CB 139-140.

   12. The applicant provided a response to the IAA’s invitation on 14 March 2016:  CB 155-157.

   13. On 18 March 2016, the IAA affirmed the delegate’s decision: CB 159-177.  Those of the IAA’s findings of fact that are pertinent to the applicant’s grounds of review are discussed below in the context of addressing those grounds.

   Judicial review

   Jurisdiction

   14. As with decisions of the Administrative Appeals Tribunal (AAT) made pursuant to ss 349(2) and 415(2) of the Act, this Court has jurisdiction under s 476 to entertain reviews of decisions of the IAA made pursuant to s 473CC(2), being migration decisions as defined in s 5(1).

   Statutory framework

   15. Before responding to the applicant’s grounds of review, it is convenient to set out some of the key features of the statutory framework.

   16. The Fast Track Assessment Process (FTAP) was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The aim of the FTAP is to provide an efficient and cost-effective means of processing the protection visa applications of those who arrived in Australia as unauthorised maritime arrivals (UMAs) on or after 13 August 2012 and before 1 January 2014.

   17. A person who is subject to the FTAP is a “fast track applicant”—a concept defined in s 5(1). It is not in dispute that the applicant was one such applicant.

   18. A person is a “fast track review applicant” if he or she is a “fast track applicant who is not an excluded fast track review applicant”: s 5(1). It is not in dispute that the applicant was a fast track review applicant.

   19. Subject to certain exceptions which are not relevant for present purposes, a “fast track decision” is defined in s 5(1) as a decision to refuse to grant a protection visa to a fast track applicant. Once again, there is no dispute that the delegate’s decision was a fast track decision.

   20. Part 7AA of the Act establishes a comprehensive scheme of review with respect to certain decisions to refuse to grant protection visas to fast track applicants.

   21. Division 8 of Part 7AA (ss 473JA-473JF) establishes the IAA, the body conducting reviews of fast track reviewable decisions.

   22. Division 2 of Part 7AA (ss 473CA-473CC) sets out the procedure for referring reviewable decisions to the IAA.

   23. Under s 473CA, the Minister must refer a “fast track reviewable decision” to the IAA as soon as reasonably practicable after the decision is made. A fast track reviewable decision is defined in s 473BB as, relevantly, a fast track decision in relation to a fast track reviewable applicant.

   24. Once the Minister has referred a fast track reviewable decision to the IAA, s 473CB requires the Secretary of the Department to give to the IAA certain material in respect of each decision at the same time as, or as soon as reasonably practicable after, such referral, namely:

   (a) a statement that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and gives the reasons for the decision;

   (b) material provided by the “referred applicant” (defined in s 473BB as an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under s 473CA) to the decision-maker before the decision was made;

   (c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review; and

   (d) the applicant’s contact details.

   25. Subsection 473CC(1) requires the IAA to review a fast track reviewable decision referred to it. Subsection 473CC(2) provides that the IAA may either affirm the decision or remit it to the Minister for reconsideration in accordance with such directions or recommendations as are permitted by the Migration Regulations 1994 (Cth).

   26. Division 3 of Part 7AA (ss 473DA-473DF) deals with the manner in which reviews are to be conducted by the IAA.

   27. Subsection 473DA(1) provides that Division 3 of Part 7AA, 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 [IAA]”. It is important to note that this provision is couched in broader terms than ss 357A(1) and 422B(1) and operates to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the IAA.

   28. Subsection 473DB(1) compels the IAA, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the IAA under s 473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.

   29. However, s 473DC(1) permits the IAA, subject to Part 7AA, to “get any documents or information” (called “new information”) that “were not before the Minister when the Minister made the decision under section 65” and “the [IAA] considers may be relevant”.  Subsection (2) confirms the discretionary nature of the power in subs (1) by providing that the IAA “does not have a duty to get, request or accept any new information whether the [IAA] is requested to do so by a referred applicant or by any other person, or in any other circumstances”.

   30. However, new information can only be considered by the IAA if the requirements of s 473DD are satisfied.  Section 473DD provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless:

   (a) the IAA is satisfied that there are exceptional circumstances to justify considering that information; and

   (b) the referred applicant satisfies the IAA that, in relation to any new information given, or proposed to be given, to the IAA by him or her, the new information:

   (i) was not, and could not have been, provided to the Minister before the Minister made the decision under s 65; or

   (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

   31. Subsection 473DE(1) imposes certain disclosure obligations on the IAA not dissimilar to those imposed on the AAT by ss 359A and 424A.

   32. Division 5 of Part 7AA contains provisions relating to the exercise of powers and functions by, relevantly, the IAA. It suffices only to note s 473FA(1), which provides that the IAA, in carrying out its functions under the Act, is to pursue the objective of “providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).”  This reinforces the legislature’s aim of establishing a form of review that is limited in scope and efficient.  Subsection 473FA(2) provides that, in reviewing a decision, the IAA is not bound by technicalities, legal forms or rules of evidence.”

3. The applicant was represented this morning by Mr Kumar of counsel.  Mr Kumar was granted leave by consent to rely on the grounds of an Amended Application filed on 1 November 2016, as follows:

   “Grounds of application

   Grounds 1

   The Tribunal asked failed to ask correct questions or incorrect questions in relation to TMVP.

   Particulars

   (a) The Tribunal did not consider the local councillors who posed the Applicant risks weer [sic] not on politics for long term issue of intention on part of the authorities which was intentional

   (b) The risk of harm from TMVP to the Applicant from the re-grouping for criminal activities.

   (c) The Authority failed to assess the future role of TMVP Party and the councillors and politicians.

   (d) Failed to address the future position of TMVP and likely consequences to the Applicant.

   Ground 2

   The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [7] - [10)).

   Particulars

   1.1 The Authority ignored the information.

   1.2 The Authority failed to take into account the information.

   1.3 The Authority failed to properly classify that the information was new information;

   1.4 The Authority failed to consider whether the section s 4 7300 was applicable in the circumstances.

   1.5 The Authority failed to consider whether the delegate should have considered the relevant information in any event (such that there was no need to apply exceptional circumstances test).

   1.6 The Authority committed jurisdictional error.

   Ground 3

   The Tribunal fell into jurisdictional error in dealing with the construction and of the intention when the Applicant's would be charged under I & E Act for illegal departure and be detained.

   Particulars

   a. Direction 56 provides that “[i]n performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department ... to the extent they are relevant to the decision under consideration.

   b. The Tribunal misconstrued whether the Applicant would be subject to intentional harm.

   c. The Tribunal did not consider the issue of intention on part of the authorities which was intentional.

   d. The Tribunal committed jurisdictional error.”

The applicant’s statement

1. The applicant provided a statement in support of his Safe Haven Enterprise visa application in which he stated that he is an ethnic Tamil of Hindu faith. The applicant stated that he had worked as an Acting Secretary with the village council in Vakari. In this statement, the applicant recounted various disagreements and encounters that he had experienced with the chairman of the council and another councillor, who were members of the Tamil Makkal Viduthalai Pulikal (“the TMVP”).

2. After lodging the statement in support of his claims, the applicant, on 23 December 2015, made further claims to fear harm due to his Hindu faith.  

Application for review

1. On 5 February 2016, the Delegate’s decision was referred to the Authority by the Department.

2. On 18 February 2016, the Authority wrote to the applicant, inviting him to provide additional evidence in relation to his claims to fear harm due to his Hindu faith to the Authority. The letter also required the applicant to state why he did not raise this claim in his visa application or during the interview with the Department. The letter informed the applicant that the Authority can only consider any new information if there were exceptional circumstances.

3. On 14 March 2016, the applicant provided additional information on his claim to fear harm by reason of his Hindu faith.

Legislation

1. Sections 473DC and 473DD of the Act, in relation to new information, are as follows:

   “473DC Getting new information

   (1)  Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:

   (a)  were not before the Minister when the Minister made the decision under section 65; and

   (b)  the Authority considers may be relevant.

   (2)  The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

   (3)  Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)  in writing; or

   (b)  at an interview, whether conducted in person, by telephone or in any other way.

   473DD Considering new information in exceptional circumstances

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

2. Further, s.36(2)(a) and s.36(2)(aa) of the Act relevantly set out the criteria for the grant of a protection visa, as follows:

   “(2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)  a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

3. Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 36(2A) of the Act defines “significant harm”, as follows:

   “(2A)  A non-citizen will suffer significant harm if:

   (a) the non-citizen will be arbitrarily deprived of his or her life; or

   (b) the death penalty will be carried out on the non-citizen; or

   (c) the non-citizen will be subjected to torture; or

   (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e) the non-citizen will be subjected to degrading treatment or punishment.”

The Authority’s review and decision

1. In its decision record, the Authority referred, in some detail, to the applicant’s additional claim. However, ultimately, the Authority was not satisfied that there were exceptional reasons to justify considering the additional information. The Authority was not satisfied that the additional information could not have been provided to the Department before the Delegate’s decision. Further, the Authority was not satisfied that the additional information was credible personal information which was not previously known and that, had it been known, may have affected consideration of the applicant’s claims for the purpose of s.473DD(b) of the Act. In the circumstances, the Authority found that it was prevented from considering the applicant’s additional information.

1. The Authority then summarised in detail the applicant’s claims to fear harm, noting in particular his fear that he will be killed or otherwise harmed by the TMVP if he returned to Sri Lanka. The Authority accepted that three incidents recounted by the applicant, resulting in various threats of harm, had occurred as claimed by the applicant. However, the Authority found that the threats were not acted upon and that the applicant was not harmed as a result of those incidents.

2. The Authority acknowledged that there are credible reports that the TMVP continues to operate in Sri Lanka and engage in criminal conduct. The Authority noted that it has taken this information into account in considering the applicant’s claims.  However, based on all the information before it, the Authority concluded that the applicant did not face a real chance of any future harm from members of the TMVP in Sri Lanka. The Authority found that the men with whom the applicant had particular run-ins previously no longer held positions in the local council, and that there had been no attempts to inquire about the applicant since September 2012. In the circumstances, the Authority found that those men and the TMVP had no ongoing interest in the applicant. Accordingly, the Authority found that the applicant did not face a real chance of any future harm from these men or the TMVP.

3. The Authority identified with particularity the independent country information to which it had regard in assessing the applicant’s claims. The Authority then considered, in some detail, the risk of harm to the applicant in returning as a failed asylum seeker who departed Sri Lanka illegally by boat in July 2012. The Authority referred to country information published by the Australian Government Department of Foreign Affairs and Trade (“DFAT”) that it is an offence under the Sri Lankan Immigrants and Emigrants Act to depart Sri Lanka illegally and that returnees may be held in detention for a short duration whilst waiting to appear before a magistrate. The Authority noted that DFAT assessed the risk of torture or mistreatment for persons suspected of an offence under the Immigrants and Emigrants Act as low.

4. The Authority accepted that the applicant may be subjected to poor prison conditions during his detention. However, referring to country information, the Authority found that this is due to overcrowding, poor sanitation and a lack of resources in Sri Lankan prisons. The Authority found that there was no intention to inflict pain or extreme humiliation on the applicant. The Authority further found that the poor prison conditions to which the applicant may be subject do not, of themselves, constitute significant harm as defined under s.36(2A) of the Act. In the circumstances, the Authority found that the applicant would not be at risk of significant harm upon his return to Sri Lanka.

Ground 1

1. Ground 1 appears to assert that the Authority erred in finding that the applicant was not at risk of persecution at the hands of TMVP members upon his return to Sri Lanka, in particular by the two council members, solely on the basis that these persons were no longer members of the council. 

2. However, a fair reading of the Authority’s decision record makes clear that, in conducting a forward looking analysis of the risk of harm to the applicant, and in concluding that the applicant did not face a real chance of persecution in the reasonably foreseeable future by reason of his fear of the TMVP council members, the Authority did not rely solely on its finding that those members no longer held the positions of chairman or provincial member in the local council.

3. The Authority referred to the applicant’s own evidence that these men had shown up at his place of work and parked out at the front of the office, yet had not harmed him in any way on that occasion. The Authority found that those men had the opportunity to forcibly take or harm the applicant at that time and that they did not do so. This led the Authority to find that they were not interested in harming the applicant. The Authority also found that the men had made no further attempts to inquire about the applicant since September 2012, and that it was now over three years since the last inquiry was made. In the circumstances, the Authority found that the TMVP members had no ongoing interest in harming the applicant.

4. The Authority’s findings were open to it on the evidence and information before it, and for the reasons it gave.  A fair reading of the Authority’s decision record does not support the applicant’s assertion in Ground 1 that the Authority relied solely on the fact that the TMVP councillors no longer held the positions that they had in the council at the time the applicant departed.

5. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 appears to cavil with the Authority’s finding that there were no exceptional reasons to justify considering the applicant’s additional information. Additionally, Ground 2 appears to take issue with the Authority’s finding that it was not satisfied that the applicant’s additional information could not have been provided to the Department prior to the Delegate’s decision, or that it was credible personal information not previously known. 

2. As stated above, the Authority identified with particularity the nature of the applicant’s additional claim. The Authority then detailed the reasons why it did not accept the applicant’s explanation that he was unaware of the significance of that claim at the time he made his visa application. It was open to the Authority not to accept the applicant’s explanation. In the circumstances, its findings in relation to the application of s.473DD of the Act were open to it for the reasons it gave.

3. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 appears to challenge the Authority’s finding that it was sufficient for the Authority to find that there was no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in considering whether there was a real risk of harm to the applicant for the purposes of s.36(2)(aa) of the Act.

2. Counsel for the applicant submitted that intention was not to be subjectively assessed contrary to the Full Court of the Federal Court’s decision in SZTALv Minister for Immigration and Border Protection & Anor [2016] FCAFC 69 (“SZTAL”). Plainly, this Court is bound by SZTAL. In any event, a fair reading of the Authority’s decision makes clear that the Authority considered in some detail what the applicant was likely to be subject to upon his return to Sri Lanka. The Authority then made findings that were open to it on the evidence and information before it.

3. As stated above, the Authority referred with particularity to the country information upon which it relied in reaching its conclusions. I accept the submission of counsel for the first respondent that there is no basis for equating the expression “intentionally inflicted” as they appear in the definitions of ‘cruel or inhuman treatment or punishment’ and ‘torture’, as well as “intended to cause” in the definition of ‘degrading treatment or punishment’ in s.5(1) of the Act, with something other than actual subjective intention.

4. In the circumstances, Ground 3 is not made out.

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; identified the evidence and information to which it had regard; and, made findings based on that evidence and information that were open to it for the reasons it gave. Further, a fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Authority’s decision is not affected by jurisdictional error and is, therefore, a privative clause decision.

3. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere. The proceeding before this court should be dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 23 November 2016 :