AWL17 v Minister for Immigration

[2017] FCCA 2525

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWL17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2525

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority misconstrued s 473DD – whether the Authority failed to consider the applicant’s claims – no jurisdictional error identified – application dismissed.

Legislation:

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

Immigrants and Emigrants Act 1948 (Sri Lanka)

Cases cited:

BVZ16 v Minister for Immigration [2017] FCA 958

Applicant: AWL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 607 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 A Kumar
On a direct access basis

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 607 of 2017

AWL17

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA, made on 7 February 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. The applicant arrived in Australia on 17 September 2012.

The delegate’s decision

1. On 31 August 2016, the delegate found the applicant failed to meet the criteria for the grant of the visa. The delegate made findings accepting part of the applicant’s claims in relation to an event in 2010, as well as the applicant being questioned by the Sri Lankan Navy (“SLN”) and the Criminal Investigation Department (“CID”), travelling into a particular area, as well as two incidents in 2011, the second of which involved the applicant having his fishing pass revoked for three days and being made to perform free labour for the CID, as well as there being one occasion between June and August 2012, where the applicant responded to the taking of fish, as a result of which, he had his boat engine broken, and was kicked, hands tied together, and pushed onto hot sand and taken to a military camp, where he was photographed.

2. The delegate did not accept the applicant was directed to present to an office at Velanai, where he was interrogated by the Eelam People’s Democratic Party (“EPDP”) for visiting Colombo Airport to farewell his cousin, who was travelling overseas, or that he was questioned while he was at the airport. The delegate did not accept the applicant’s family had been harassed by the CID or others since the applicant’s arrival in Australia. The delegate did not accept that the applicant was of ongoing interest to the SLN and CID after he was released at the end of 2011, following questioning. The delegate did not accept the applicant was targeted by authorities for not attending work when his mother required surgery.

The Authority’s decision

1. On 9 September 2016, the Authority wrote to the applicant, identifying that the matter had been referred to the Authority for review. The letter explained to the applicant that there were limited circumstances in which the Authority could receive new information. The letter attached a fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and to put on submissions.

Information before the Authority

1. The Authority’s reasons, dated 7 February 2017, identify the background to the visa application, as well as having regard to the material referred under s 473CB of the Act. The Authority then engaged with the submissions that were made, dated 6 and 10 October 2016, as well as the information provided on behalf of the applicant. The Authority accepted, to the extent the submission discussed evidence including country information, which was before the delegate, and responded to the delegate’s reasons based on that material, that this was not new information, and had regard to the same.

2. The Authority identified, in the submissions, new information concerning the applicant’s diaspora activities in Australia. The Authority engaged with identifying the information in detail that had been provided. The Authority took into account the submissions addressing the criteria under s 473DD, in respect of both limbs (a) and (b), as to whether there were exceptional circumstances, and whether the material was credible personal information, as well as explaining, in respect of some of the articles provided as country information, being dated before the delegate’s decision, which would be treated as new information, because the applicant was not, then, represented.

3. The Authority identified submissions identifying information that could not have been provided to the delegate. The Authority, in its reasons, expressly responded to the summarised submissions in recognising that not all visa applicants are represented, but did not accept the lack of representation at the time of the Safe Haven Enterprise visa application, or at the time of the interview, amounts to exceptional circumstances. The Authority referred to the applicant’s fear of adverse consequences when supplying some information as not being uncommon amongst protection visa applicants, and did not accept that it generally amounts to exceptional circumstances.

4. The Authority noted the applicant had been represented when he lodged his invalid application in 2013, and confirmed that his representatives had read back to the applicant his 2013 written statement to him, and asked if he understood the information provided by him to the Department, where the applicant had said he understood because his lawyers had previously explained it to him. The Authority made reference to the delegate explaining to the applicant that at the Safe Haven Enterprise visa interview, it was extremely important that he provide full personal and accurate protection claims as early as possible, including during the interview.

5. The Authority then made reference to the applicant being represented at the earlier stage of his protection visa application and having access to legal advice, and having been told about the importance of providing full protection claims as early as possible. It was in those circumstances that the Authority found it was not satisfied there were exceptional circumstances to justify considering the new information provided by the applicant about his diaspora activities and his cousins.

6. The Authority then referred to the applicant being asked a number of questions about his family at the Safe Haven Enterprise visa interview, including their current locations, and that the applicant confirmed B1 was in the UK. The Authority made reference to the delegate asking the applicant if any of his siblings had encountered problems with the Sri Lankan authorities. It was in those circumstances the Authority found that the applicant had had a fair opportunity to put information about B1’s situation, but did not do so. The Authority took into account that the applicant had a fair opportunity to raise the situation of B1, in relation to his residence in the UK and any problems with the Sri Lankan authorities, that he was represented in an earlier stage of the process, and that he had access to legal advice. The Authority was not satisfied there were exceptional circumstances to justify considering the new information provided by the applicant about B1.

7. The Authority then made reference to country information submitted by the applicant that predated the delegate’s decision. The Authority engaged with the nature of the articles and found they did not contain personal information concerning the applicant and his family. The Authority was not satisfied there were exceptional circumstances to justify considering the new information in the form of country information provided by the applicant. The Authority also made reference to letters from an MP and a Regional Coordinator that post-date the delegate’s decision. The Authority found that the information provided by those letters predates the delegate’s decision, and that there was no explanation provided as to why it was not possible to make the information in those letters available earlier.

8. The Authority referred to the applicant being aware he could lodge further supporting documents after lodging his Safe Haven Enterprise visa application and that he did provide further information including a number of letters. The Authority also made reference to the explanation given to the applicant at the time of the Safe Haven Enterprise visa interview that there were limits on the ability of the Authority to consider new information. The Authority was not satisfied there were exceptional circumstances just by considering the new information provided by the applicant in the form of the letters from the MP and the regional coordinator of the HRCSL.

Factual findings

1. The Authority identified the applicant’s claims and evidence. The Authority accepted what was described of the majority of the applicant’s claims consistent with what had been accepted by the delegate. The Authority expressed having serious concerns about the truthfulness of the applicant’s claims concerning events in Sri Lanka after he departed in August 2012. The Authority provided reasons in support of those concerns including the applicant’s non-responsive answer and being inconsistent about a particular incident and the limited information that the applicant was able to provide. Given those inconsistencies and lack of detail and the applicant’s vagueness when questioned about the incidents the Authority was satisfied the applicant had exaggerated and embellished his evidence to boost his claims for protection.

2. The Authority rejected the applicant’s claims that the CID visited his family after he departed Sri Lanka in August 2012.

Refugee Assessment

1. The Authority found the incidents that the applicant was exposed to were attributable to the prevailing conditions in Sri Lanka at the time that they occurred and found that the chance of the applicant suffering similar harm now and in the reasonable foreseeable future was remote. The Authority was not satisfied that the harassment of the applicant’s fishing work is to such an extent that it threatens the applicant’s capacity to subsist or otherwise constitute serious harm. The Authority took into account country information identifying a moderate level of societal discrimination between ethnic groups. The Authority found there is not a real chance the applicant would, as a Tamil male and Tamil fisherman from the north, face official or societal discrimination amounting to serious harm if returned to Sri Lanka now or in the reasonably foreseeable future.

2. The Authority found the applicant was not at risk of harm for reason of any LTTE links including any imputed political opinion now or in the reasonably foreseeable future. The Authority set out detailed reasons in support of that finding. The Authority was not satisfied that the authorities would have any adverse interest in the applicant if he remained in Sri Lanka or that we would be of any adverse interest to the current Sri Lankan authorities on return. The Authority found the risk of harm to the applicant from the authorities based on his profile to be remote.

3. The Authority was satisfied the applicant would not face a real chance of harm from Sri Lankan authorities due to any real or perceived links to the LTTE if returned to Sri Lanka now or in the reasonably foreseeable future and/or as a Tamil male and fisherman from the north.

4. The Authority accepted that the applicant had been questioned on one occasion by the EPDP. The Authority was satisfied the applicant will not face a real chance of harm from the EPDP if returned to Sri Lanka now or in the reasonably foreseeable future. The Authority was not satisfied that there is a real chance the applicant would face harm in Sri Lanka as a failed asylum seeker.

5. The Authority found the applicant may be detained and questioned at the airport for up to 24 hours, face a fine for breaching the Immigrants and Emigrants Act 1948 (Sri Lanka) (“the IE Act”) and, depending upon the availability of a Magistrate at the time he is charged under the IE Act, may face a short period of being held in prison. The Authority found that the brief period, one to three days in detention, would not constitute the necessary level of 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 for the applicant.

6. The Authority found that any likely questioning of the applicant by the Department of Immigration and Emigration (“DOIE”), State Intelligence Service (“SAS”), or CID at the airport on arrival, any surety imposed or the imposition of a fine under the IE Act would not constitute a threat to his life or liberty or to be serious physical harassment or ill treatment under s 5J of the Act or otherwise amount to serious harm.

7. The Authority found that the IE Act is law that is not discriminatory on its terms and that it is not selectively enforced or applied in a discriminatory manner. The Authority found that the investigation, prosecution and punishment of the applicant under the IE Act would be the result of a law of general application that does not amount to persecution of the purpose of s 5H(1) and s 5J(1) of the Act. The Authority was not satisfied that the applicant faces a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future.

8. The Authority found that the applicant failed to meet the definition of refugee under s 5H(1) and does not meet the criteria under s 36(2)(a) of the Act.

Complementary protection assessment

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 the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act.

Proceedings before this Court

Grounds in the application

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

   Ground 1

   The Authority erred in failing into account relevant considerations and / or failed to give realistic consideration to the Applicant's LTTE connection and family links and thereby committed jurisdictional error.

   Particulars

   (a) The Applicant submitted the family link (brother and cousins) as having connections to family link.

   (b) This is relevant to the consideration of the risks under the various guidelines.

   (c) Such links is directly relevant in consideration of the Applicant's political opinion / imputed political opinion and the basis of assessing the risks to the Applicant ('persons with L TIE links') upon return. The Authority ignored the claims.

   (d) The Authority ignored the relevant considerations such as brother's departure to England.

   (e) The Authority thereby committed jurisdictional error.

   Ground 2

   The Authority committed jurisdictional error when it failed to whether impositions of restriction / conditions limiting the ability to fish (his former subsistence constituted “real risk” on ability to subsist and the involvement of the SLN and thereby constituted serious harm and / or significant harm. The Applicant's claims were generally accepted (at [251).

   Particulars

   (a) The Applicant claimed that the Applicant would suffer serious harm in being able to carry out fishing to sustain livelihood.

   (b) The Authority has accepted that the Applicant would suffer the same treatment (at [36]) upon return to Sri Lanka.

   (c) The Authority did not assess whether he could engage in other activities to survive.

   (d) The Authority committed jurisdictional error.

   Ground 3

   The Authority committed jurisdictional error when it failed to properly engage with the applicant's disaspora activities and fell into error to give realistic consideration whether these gave rise to risk to the Applicant.

   Particulars

   (a) The Applicant claimed that the Applicant would suffer serious harm for his diaspora activities.

   (b) The Authority failed to engage with the claims / evidence relating to the diaspora activities (such as the Applicant wearing LTTE scarf).

   (c) The Authority fell into error when considering the claims regarding diaspora activities.

   (d) The Authority committed jurisdictional error.

   Ground 4

   The Authority erred in consideration of the MP's letter and SHRC letter provided by the Applicant and failed to give these claims realistic consideration and thereby committed jurisdictional error.

   Particulars

   (a) The Authority fail to engage with the Applicant's document

   (b) The Authority fell into jurisdictional error.

   Ground 7

   The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [3] - [10]); failed to ask correct questions and / or asked incorrect questions and irrational / illogical and / or misconstrued s 473DD of the Act.

   Particulars

   (a) The Authority ignored certain information as new information.

   (b) The Authority failed to take into account the information.

   (c) The Authority failed to properly classify that the information was new information;

   (d) The Authority failed to consider whether the sections 473DD was applicable in the circumstances.

   (e) The Authority failed to consider the exceptional nature of the information about B1 and that the Applicant was self-represented (at [9]).

   (f) The claim of the Applicant's uncle was involved with LTTE was critical claim in respect of which procedural fairness was denied.

   (g) There was potential risk / danger to others.

   (h) Considered individually or cumulatively these were exceptional circumstances.

   (i) The Authority has not properly considered and applied the discretion rather placing emphasis on failure to previously submit the information.

   j) Thes Authority erred in rejecting and / or ignoring these as exceptional circumstances.

   (k) The Authority committed jurisdictional error.

2. Mr Kumar of counsel confirmed that Grounds 5 and 6 were no longer pressed.

3. In relation to Grounds 1, 3, and 4, Mr Kumar argued in reliance upon the decision in BVZ16 v Minister for Immigration [2017] FCA 958, that the Authority had failed to take into account all the circumstances and had adopted an inappropriately narrow understanding of the reach of exceptional circumstances and had failed to consider the whole of the provisions of s 473DD. Mr Kumar argued that there had been a failure by the Authority to genuinely engage with the submissions advanced by the applicant in relation to the new information, the subject of Grounds 1, 3, and 4.

Consideration

1. A fair reading of the Authority’s reasons reflects the Authority having a proper and meaningful engagement with the submissions advanced in relation to the new information. Further, it is apparent both from the submissions and from the Authority’s reasons that the Authority had regard to the whole of the provisions of s 473DD in considering the new information. There is no warrant in the present case for inferring that the Authority failed to take into account s 473DD(b). The reference to credible personal information in the Authority’s reasons supports that finding.

1. I do not accept that the Authority adopted a narrow construction of exceptional circumstances on a fair reading of the Authority’s reasons of the kind identified in BVZ16 nor in light of the finding that I have made including the reference to credible information is this a case where it can be inferred that the Authority has failed to have regard to the whole of the provisions of s 473DD. The reference to the detail and content of the submissions reflects a real and meaningful engagement by the Authority with the submissions in respect of the new information. Further, there is no warrant in the present case for inferring the Authority has failed to take into account the whole of the circumstances in relation to the exercise of the power under s 473DD. No jurisdictional error as alleged in Grounds 1, 2, and 4 is made out.

2. The adverse finding by the Authority in relation to the new information cannot be said to lack an evident and intelligible justification and cannot be said to be an unreasonable exercise of the power conferred on the Authority under s 473DD.

3. In relation to Ground 2, Mr Kumar of counsel took the Court to the Authority’s reasons in relation to the incidents that the applicant had encountered in relation to loss of his fishing catch and argued that there was not a meaningful and real consideration being given to the applicant’s claim in relation to his ability to sustain himself. The Authority’s reasons reflect a proper and genuine engagement with the applicant’s claims. The adverse finding in relation to the applicant’s ability to subsist as a Tamil fisherman was open on the material before the Authority and cannot be said to lack an evident and intelligible justification. No jurisdictional error of the kind alleged in Ground 2 is made out.

4. Mr Kumar of counsel accepted that Ground 7 was in substance advanced in support of Grounds 1, 3, and 4. For the reasons already given, any alleged errors in Grounds 1, 3, and 4 are not made out. No jurisdictional error as alleged in Ground 7 is made out.

Conclusion

1. For the reasons given above, the amended application is dismissed.

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

Associate:

Date:  3 November 2017