AYF16 v Minister for Immigration
[2017] FCCA 1487
•29 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYF16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1487 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – no practical injustice to the applicant for failure to disclose s.473GB certificate – adjournment application opposed – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473GB, 476, Part 7AA |
| Cases cited: Minister of Immigration and Border Protection v Singh [2016] FCAFC 183 MZAFZ v Minister for Immigration for Border Protection (2016) 243 FCR 1 |
| Applicant: | AYF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 980 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 29 June 2017 |
| Date of Last Submission: | 29 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Shelly Legal |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Grant leave to the applicant to rely upon the amended application dated 26 June 2017 with the word “draft” being deleted.
Grant leave to the first respondent to file in Court the affidavit of Mia Wells affirmed 26 June 2017 and the Court dispenses with the need for the electronic filing of the copy.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,915.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 980 of 2016
| AYF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Migration Act made on 24 March 2016, affirming a decision of the delegate not to grant the applicant a Protection visa.
The applicant was found to be a citizen of Sri Lanka and a Tamil of the Hindu faith, born in the Eastern Province. The applicant claimed that he would be killed or tortured by the TMVP or the Sri Lankan authorities, including the SLA who are connected with the TMVP and that the CID will harm him if he refuses to assist them in relation to an alleged witnessing of a murder by the applicant. The applicant also alleged he would face harm as a young Tamil from the north and east of the country who witnessed a crime. The applicant claimed to fear harm based on his ethnicity, as a failed asylum seeker/returnee from a western country and as an illegal departee.
The applicant arrived on Christmas Island on 17 August 2012 and applied for a Protection visa on 15 September 2015. On 10 February 2016, the delegate found that the applicant failed to meet the criteria for the grant of the protection visa and found that the applicant was not an excluded fast track applicant.
The Authority’s decision
By letter sent to the applicant dated 15 February 2016, the Authority identified that the matter be referred to the Authority for review. The letter identified that the Department had provided the Authority with all documents considered relevant to the case and explained the limited circumstances in which the Authority could consider new information. The letter provided an attached fax sheet and practice direction, giving the applicant an opportunity to put on submissions and new information.
Information before the Authority
Two submissions were sent to the Authority on 4 March 2016 which were addressed in the Authority’s reasons. The Authority identified the applicant’s background. The Authority identified having regard to the information referred under s.473CB of the Migration Act. The Authority carefully addressed the submissions and annexed material and found that certain information provided with the submissions did not satisfy the Authority that there were exceptional circumstances to justify considering the same.
The Authority also identified in respect of information from the United Kingdom Home Office that it was satisfied there were exceptional circumstances to justify considering that information.
The Authority identified the applicant’s claims and set out the applicable law as well as including the applicable statutory provisions in an attachment to the decision.
Refugee convention criteria assessment
The Authority was not satisfied the applicant faces a real chance of any harm arising from the alleged incident of witnessing a murder, if he returned to Sri Lanka now or in the reasonable foreseeable future.
The Authority was not satisfied there is a real chance the applicant would be imputed with LTTE association unless having a scar on return to Sri Lanka in the future. The Authority was not satisfied that the applicant faced a real chance of harm from the government, or the authorities on return to Sri Lanka, for the reason of being a young Tamil male from the east of Sri Lanka now or in the reasonably foreseeable future.
The Authority was not satisfied the applicant faces a real chance of harm on return to Sri Lanka for reasons of being a failed asylum seeker or returnee from a Western country, including due to his being a young Tamil male from the east of Sri Lanka, now or in the reasonably foreseeable future.
The Authority accepted that the applicant departed Sri Lanka illegally and accepted that he would be subjected to a process under the Immigrants and Emigrants Act for having departed Sri Lanka. The Authority expressly took into account the poor conditions and overcrowding and poor sanitation. The Authority accepted that the applicant would be charged under the Immigrants and Emigrants Act for his illegal departure and found that if the applicant arrives over a weekend or long weekend, there is a chance that the applicant may be held at a nearby prison until he goes before a magistrate. The Authority was not satisfied the applicant faces a real chance of serious harm for his illegal departure during the investigation process, or during any brief period spent in detention.
The Authority found the Immigrants and Emigrants Act was a law that was not discriminatory on its terms and that it is a law of general application. The Authority found the investigation, prosecution and punishment of the applicant for illegal departure 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 Migration Act.
Having considered the applicant’s claims cumulatively, the Authority was not satisfied there was a real chance the applicant would face harm or persecution on return to Sri Lanka now or in the reasonably foreseeable future. The Authority found the applicant was not a refugee under s.5H(1) of the Migration Act and found the applicant failed to meet the criteria under s.36(2)(a) of the Migration Act.
Complementary protection criteria assessment
The Authority found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to the receiving country, being Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Migration Act and affirmed the decision under review.
Before this Court
The ground in the amended application is as follows:-
1. The 1AA acted upon a certificate invalidly issued under s473GB of the Act, or alternatively denied the applicant procedural fairness as defined in the Act.
Particulars
a. There was a Certificate issued under s.473GB of the Act concerning an “identity assessment".
b. This Certificate was referred to by the delegate at CB 106.
c. The Certificate was invalidly issued and/or the Applicant was denied procedural fairness with respect to the granting of the certificate.
In the present case, a certificate issued on 10 February 2016 under s.473GB of the Migration Act, expressly identified a document, being an “identity assessment” whereby that disclosure would be contrary to public interest because it is a Departmental working document. On the face of the certificate, it is a valid certificate under s.473GB of the Migration Act. On the evidence before the Court, the s.473GB certificate and the documents the subject of that certificate were not disclosed to the applicant. Mr Bodisco of counsel submits that the nondisclosure of the certificate gives rise to an error of the kind identified in MZAFZ v Minister for Immigration for Border Protection (2016) 243 FCR 1 (“MZAFZ”) and that there was accordingly a jurisdictional error.
Adjournment application raised from the bar table
Mr Bodisco of counsel also advanced that because there was an appeal on foot in respect of one of the decisions of this Court distinguishing MZAFZ in relation to Part 7AA, that there should be an adjournment. The adjournment application was not consented to by the first respondent. On the face of the material that has been admitted into evidence in the present case, the identity of the applicant was not the subject of any issue before the Authority. Neither the non‑disclosure of the certificate, nor the failure to disclose the identity assessment gives rise to any practical injustice in the present case.
I am not satisfied that the existence of an appeal in relation to other proceedings involving the application of Part 7AA and a certificate under s.473GB of the Migration Act warrants the grant of an adjournment. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.
Conclusion
I accept the first respondent’s submission that the decision in MZAFZ and Minister of Immigration and Border Protection v Singh [2016] FCAFC 183 have no application to reviews conducted by the Authority under Part 7AA.
Further, as indicated above, I find that the non-disclosure of the certificate and the information the subject of the certificate in the present case could not possibly give rise to any practical injustice to the applicant. Accordingly, no jurisdictional error is made out by ground 1 of the amended application.
The amended application is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 26 July 2017
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