Avn17 v Minister for Immigration

[2017] FCCA 2524

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVN17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2524

Catchwords:

MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – not legally unreasonable for the Authority to not exercise power under s 473DD to receive the employment information as new information – adverse credibility findings cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DA, 473DD, 473DE, 476

Applicant: AVN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 582 of 2017

Judgment of: Judge Street

Hearing date: 18 October 2017

Date of Last Submission: 18 October 2017

Delivered at: Sydney

Delivered on: 18 October 2017

REPRESENTATION

Counsel for the Applicant: Mr B Carney

Solicitors for the Applicant: M J Woods & Co Solicitors

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. Leave to the applicant to rely upon the amended application initialled and dated by the Court today and dispense with the need for the filing of an electronic copy.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 582 of 2017

AVN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. 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 the decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 2 February 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 28 August 2012. The applicant claimed to fear harm by reason in summary, of his Tamil ethnicity and having origins in the Eastern Province of Sri Lanka, his imputed political opinion as being suspected of being linked to the LTTE, his imputed and actual political opinion to be against the Sri Lankan government for being a male Tamil from the Eastern Province who departed Sri Lanka illegally and claimed asylum in a Western country, and his membership of a particular social group of failed asylum seekers.

3. On 15 December 2016 the delegate found the applicant failed to meet the criteria for the grant of a visa. The delegate made adverse credibility findings in relation to part of the applicant’s claims. The delegate did not accept that the applicant’s uncle was, or is, an LTTE commander. The delegate did not accept that the applicant gave the uncle and an LTTE colleague a lift on his motorbike and did not accept the applicant was detained and beaten by the Sri Lankan Army (SLA) because he was seen transporting known LTTE members. The delegate did not accept the CID visited the applicant’s home and confiscated his passport and did not accept the SLA and/or CID have continued to visit the applicant’s homes to asks questions about his whereabouts. The delegate did not accept the SLA or CID have an ongoing interest in the applicant for reasons claimed.

The Authority’s decision

1. By letter dated 23 December 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter explained that there were limited circumstances in which new information could be received by the Authority. The letter attached a fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. Pursuant to that letter, submissions were provided by the applicant to the Authority on 9 January 2016.

2. The Authority in its reasons identified the background to the visa application and identified having regard to the material referred under s 473CB of the Act. The Authority made express reference to the submissions provided by the applicant in support of his claims. In relation to the applicant’s assertion that his uncle was killed as a result of recent events, the Authority concluded that the claimed death and raid must have occurred since that date. It was in those circumstances the Authority found that there were exceptional circumstances to justify the Authority considering that information.

3. The Authority made reference to the applicant’s comments regarding his employment. In that regard, the applicant referred to being in full-time employment as a job renderer in the construction industry and seeking to obtain a forklift driver’s licence, as well as his intention to move to a regional area if he has a valid work visa, and referred to a place in Orange where there was a shortage of picker forklift drivers, and his hope that he has a future in that regard. The Authority identified that the statement relating to the applicant’s employment was not relevant to his protection claims. The Authority was not satisfied in those circumstances that there are exceptional circumstances which justify considering the information as if new information.

4. The Authority referred to the Authority obtaining country information, which the Authority was satisfied there were exceptional circumstances to justify considering. 

Consideration of the applicant’s claims

1. The Authority identified the applicant’s claims and evidence. The Authority identified a number of inconsistencies in the applicant’s account in relation to LTTE recruitment and found that cumulatively they cast doubt upon the applicant’s claims. The Authority identified the inconsistencies.  The Authority found in addition to those concerns, the Authority was of the view the applicant’s claim that his uncle was a senior LTTE commander still at large and living in hiding in Sri Lanka in 2012 was not plausible when considered against country information about the defeat of the LTTE and the fate of LTTE members after the war. 

2. The Authority was not satisfied the LTTE was in existence in 2012.  The Authority observed that if the uncle was a senior LTTE commander and well known to the authorities as stated by the applicant, the Authority did not accept as plausible the applicant’s claim that the authorities did not harass or contact the uncle’s wife to locate the uncle because she has young children. 

3. The Authority was also of the view that it was implausible that an LTTE commander living in hiding would visit extended family at their home occasionally, irrespective of his claim that the uncle visited at night to avoid detection.  The Authority did not accept that an LTTE commander would risk detection by visiting family members living in such close proximity to the army. 

4. The Authority found it was not plausible that the applicant’s uncle was a senior LTTE commander wanted by and well known to the authorities, and yet in the time after the end of the war, no family members were ever questioned about the uncle’s whereabouts or monitored until the applicant returned from Dubai in 2012. The Authority found the applicant’s account to be so implausible that the Authority rejected the claims regarding the uncle in their entirety. 

5. The Authority did not accept the uncle was a senior LTTE commander who was recently killed, that because of the uncle, the applicant was assaulted by the army in 2005, that his uncle was in hiding and that the applicant gave him a lift in 2012, and subsequently the applicant was targeted by authorities. The Authority did not accept the applicant had been imputed by the authorities as having an LTTE profile, either real or imputed, nor that he was detained, questioned and tortured by the army, and/or the CID. The Authority did not accept that the army/CID confiscated his passport or prevented him from travelling. The Authority did not accept that the authorities made repeated visits to the applicant’s family home in search for him in 2012, and did not accept that after the applicant departed, his father went to Qatar to avoid harassment. The Authority did not accept that the authorities visited his mother in 2015 and made threats of harm to the applicant, or that the family home was recently raided by the military. The Authority did not accept the applicant has been imputed with an LTTE profile.

Assessment of Refugee Convention criteria

1. The Authority found the applicant may be detained and questioned at the airport for up to 24 hours and be fined for breaching the Immigrants and Emigrants Act and may face a period of time held in prison. The Authority did not consider the brief period of detention would constitute the necessary level of threat to the applicant’s life or liberty or to be significant physical harassment or ill treatment under s 5J(5) of the Act or otherwise amount to serious harm to the applicant. 

2. The Authority did not consider the likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed or imposition of a fine under the Immigrants and Emigrants Act to constitute a threat to his life or liberty or to be significant physical harassment or ill treatment under s 5J(5) of the Act or otherwise amount to serious harm. 

3. The Authority found that the Immigrants and Emigrants Act was not a law that was discriminatory on its terms and was not selectively enforced or applied in a discriminatory manner. The Authority found the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act would be the result of a law of general application and does not amount to persecution for the purposes of s 5H(1) and s 5J(1) of the Act. The Authority found the applicant failed to meet the definition of refugee under s 5H(1) of the Act and did not mean the criteria under s 36(2)(a) of the Act. 

Assessment of complementary protection criteria  

1. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds of the amended application are as follows:

   1. The Second Respondent made jurisdictional errors in statutory construction and its decision was legally unreasonable.

   2. The Applicant was not afforded procedural fairness.

   3. The Applicant was not afforded Natural Justice. In particular;

   a. The Applicant was not shown the documentation which formed the basis of its decision,

   b. The Applicant was not provided an opportunity to respond to the documentation upon which the Second Respondent relied upon in making its decision.

   4. The Second Respondent's decision is void on the grounds of unreasonable apprehension of bias as it did not being an open impartial mind to the review of the Applicant's case as it had already made up its mind.

   5. The Second Respondent failed to lawfully consider the danger involved in that;

   I. The Second Respondent failed to consider the danger involved in ordering the Applicant to return to Sri Lanka,

   II. The Second Respondent failed to give weight to the Applicant's history in Sri Lanka.

Ground 1

1. In relation to ground 1, Mr Carney of counsel submitted that the Authority’s rejection of the information concerning the applicant’s employment in Australia was either the subject of a statutory error or legally unreasonable. Mr Carney identified that there was other evidence the applicant wished to adduce if the applicant was able to do so and read two affidavits that were admitted subject to relevance.  Those affidavits submitted material that was not before the Authority.  Material that was not before the Authority in relation to the applicant’s claims, is not capable of establishing a jurisdictional error.

2. On the face of the Tribunal’s decision, the Tribunal engaged with the submissions advanced by the applicant in relation to new information in considering the requirements of s 473DD of the Act. The information in relation to the applicant’s employment and prospects in that regard, on its face, was weighed by the Authority in connection with the requirements as to whether there were exceptional circumstances to consider the new information. The fact that the applicant’s employment on its face was not relevant to the protection claims, was a weighing consistent with the statutory provision of a relevant consideration in determining whether there were exceptional circumstances to receive that new information. 

3. It is apparent from the Authority’s reasons that the Authority found there were exceptional circumstances to receive the other new information in the applicant’s submissions. On the face of the information concerning the applicant’s employment, it was clearly irrelevant to the protection claims and accordingly, it was not legally unreasonable for the Authority to fail to exercise the power under s 473DD of the Act to receive the employment information as if new information. 

4. I am not satisfied that there was any statutory misconstruction by the Authority in the consideration of whether the employment information was new information to meet the requirements of s 473DC and s 473DD of the Act. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Carney advanced that the applicant should have been given an opportunity to produce evidence of his uncle’s involvement with the LTTE. It is apparent from the delegate’s decision that the issue of the applicant’s involvement with the LTTE was a matter that the delegate rejected in terms of credibility.

2. The Authority complied with its obligations of procedural fairness by the sending of the letter identifying the limited circumstances in which new information could be received and giving the applicant an opportunity to put on submissions and by taking into account those submissions, subject to the requirements of s 473DD of the Act. There was no easily identifiable information that could be readily obtained in respect of a material claim in relation to the applicant’s claims so as to give rise to any duty of an enquiry. There is no proper basis to find that the Authority adopted a narrow or erroneous meaning of exceptional circumstances and there is no basis to infer that the Authority did not take into account the whole of the provision.

3. The Authority further was constrained by the requirements of s 473DA of the Act and the subdivisions of Division 3 of the Act. Mr Carney sought to emphasise the seriousness of the allegation concerning the uncle’s involvement. That does not however identify anything other than a matter going to the merits of the application. This Court does not have power to review the merits. There was no obligation of procedural fairness that required the Authority to take the step of giving the applicant an opportunity to produce further evidence concerning his uncle’s involvement in the LTTE, nor was there any duty on the Authority to make further enquiries. On the face of the Authority’s reasons, the Authority complied with the requirements of procedural fairness. No jurisdictional error as alleged in ground 2 is made out. 

Ground 3

1. In relation to ground 3, Mr Carney of counsel submitted that the Authority should have given the applicant an opportunity to look at the country information that was taken by the Authority. Section 473DE(3)(a) of the Act identifies that new information and the nature of country information is not one engaging any obligation to give the applicant an opportunity to respond to the same. Accordingly, no jurisdictional error as alleged in ground 3 is made out. 

Ground 4

1. Mr Carney of counsel identified that ground 4 was not pressed. That was a proper course to take and there is nothing on the face of the material before the Court to suggest that the Authority approached the matter other than with an open mind reasonably capable of persuasion on the merits in accordance with the review obligation under Part 7AA.

2. Further, the Authority’s reasons and adverse findings are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits. 

Ground 5

1. In relation to ground 5, it is apparent that the Authority considered the applicant’s claims and made adverse credibility findings that were open on the material before the Authority. Those adverse credibility findings cannot be said to lack an evident and intelligible justification. In substance, ground 5 is an invitation to this Court to engage in an impermissible merits review. This Court does not have the power to revisit the merits. No jurisdictional error is made out by ground 5. 

2. As the amended application fails to make out any jurisdictional error, the amended application is dismissed. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 November 2017