AYK17 v Minister for Immigration
[2017] FCCA 2568
•24 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYK17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2568 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Safe Haven Enterprise visa – whether the Authority had conflated the requirements of s 473DC with s 473DD – no requirements by s 473DC to make an express finding identifying the relevance of the information – the information was patently relevant – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473DC, 473DD, 476 |
| Cases cited: CDZ16 v Ministerfor Immigration and Border Protection [2017] FCA 967 CVK16 v Minister for Immigration & Anor [2017] FCCA 235 |
| Applicant: | AYK17 |
First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 660 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 24 October 2017 |
| Date of Last Submission: | 24 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Seymour |
| Solicitors for the Applicant: | Tim Smith Lawyers Pty Ltd |
| Solicitors for the Respondents: | Mr K Eskerie Sparke Helmore |
ORDERS
Grant leave to the applicant to rely upon the amended application filed on 25 August 2017.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 660 of 2017
| AYK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ withi 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 3 February 2017 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 his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 13 October 2012. The applicant left Sri Lanka legally using his passport in October 2010 and travelled to Malaysia. The applicant left Malaysia without a passport to travel to Australia. On 20 February 2016, the applicant lodged a valid application for a Safe Haven Enterprise visa.
On 20 December 2016, the delegate found the applicant failed to meet the criteria under the Act for the grant of a visa. The applicant claimed to fear harm from the Sri Lankan authorities arising from his imputed support for the Liberation Tigers of Tamil Eelam (LTTE) and due to his ethnicity. The applicant also claimed to fear harm by reason of being a failed asylum seeker and because of informers in his village.
The Authority’s decision
On 5 January 2017, 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 the Authority could consider new information. The letter provided an attached fact sheet and practice direction providing the applicant with an opportunity to put on new information and to put on submissions.
The applicant provided submissions on 26 January 2017. Those submissions were identified and considered in the Authority’s reasons. In the reasons of the Authority dated 3 February 2017, the Authority identified the background to the visa application.
Information before the Authority
The Authority identified having regard to the material referred under s 473CB of the Act. The Authority then referred to the submissions made on behalf of the applicant and noted that those submissions refer to and challenge the delegate’s reasons and issues that were before the delegate. The Authority was satisfied that this was not new information and has considered the same.
Critically, for the alleged jurisdictional error in the present case, the Authority then referred to the submissions also making what appears to be a new claim that the applicant may be a potential witness to the deaths of people in incarceration. The Authority observed that this claim has not previously been put forward by the applicant. The Authority observed that it is not apparent why the information was not provided to the delegate before the decision was made. The Authority noted that no explanation had been provided.
The Authority noted the applicant was legally represented in relation to the Safe Haven Enterprise visa application and at the Safe Haven Enterprise visa interview where he was asked a number of times whether he had provided all information he wished to rely upon. The Authority found that in these circumstances and pursuant to s 473DD(a) of the Act, the Authority was not satisfied there were exceptional circumstances to justify consideration of the new information.
The Authority then referred to the submissions, including three media reports. The Authority expressly referred to those three reports containing general information and not personal information which is clearly a reference to the second limb of s 473DD of the Act. The Authority defined the same as being new and in the circumstances, was not satisfied that there are exceptional circumstances to justify consideration of that new information.
Consideration of Refugee Convention criteria
The Authority accepted the applicant is a Tamil Catholic from the north of Sri Lanka. The Authority accepted that the applicant and his family were displaced. The Authority found given the cessation of hostilities and the fact the applicant was able to obtain a passport and leave Sri Lanka without hindrance, the Authority was satisfied the applicant would not face a reporting requirement should he return to Sri Lanka.
The Authority noted the applicant was never arrested and/or taken to detention camps, his family home was not searched, and his family was not otherwise harassed or questioned about him. The Authority was satisfied that while the applicant was a person of low level interest to the authorities during the conflict and suffered mistreatment, the Authority accepted that the applicant did not have a profile such that he was of ongoing interest after 2010 or would be of any interest to the authorities now.
The Authority was not satisfied the applicant would now be imputed with membership of or support for the LTTE on the basis of being an unmarried Tamil from the northern provinces, or because he had come from an LTTE controlled area.
The Authority made reference to the applicant claiming, that other than his deceased elder brother, no one from his family was involved in the LTTE. The Authority found the applicant’s brother was a person of low level interest to the authorities during the conflict and that the brother did not have such a profile now. The Authority was satisfied that the authorities would not have any interest in the applicant arising from his association with his brother. The Authority was not satisfied the applicant would be imputed with membership of or support for the LTTE on the basis of his association with his brother.
The Authority did not accept the applicant’s claims in relation to ongoing evidence and found the applicant was not of ongoing interest to the Sri Lankan authorities including the CID, at the time of his departure from Sri Lanka and that he obtained a passport and left lawfully and without hindrance. The Authority was not satisfied the authorities would now consider him to have breached the rules and be seeking him some six years later.
The Authority referred to the applicant’s claimed fear in relation to informants. The Authority was satisfied the authorities would not suspect the applicant of being involved in terrorist or criminal activities, and the applicant does not face a real chance of harm on the basis of informants making claims about him.
The Authority referred to the applicant being a Tamil Catholic. The Authority found the applicant does not face a real chance of harm on the basis of being a Tamil, a Tamil male from the northern province or a Catholic.
The Authority referred to the claims as a failed asylum seeker. The Authority found there is not a real chance that the applicant would be harmed and mistreated because he is a returning asylum seeker. The Authority was not satisfied the applicant will face a real chance of serious harm on the basis of being imputed as a member or supporter of the LTTE, his ethnicity or religion, or his being a returned asylum seeker should he return to Sri Lanka.
The Authority found the applicant did not meet the requirements of the definition of refugee under s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.
Consideration of Complementary Protection criteria
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 Sri Lanka there is a real risk the applicant will suffer significant harm and found the applicant did not meet the criteria under s 36(2)(aa) of the Act. Accordingly, the Authority affirmed the decision under review.
Before this Court
The ground in the amended application is as follows:
3. The IAA failed to consider the claim raised by the Applicant that he had a well founded fear of being harmed on account of having witnessed people being killed while he was in custody in Sri Lanka and therefore a witness to crimes committed by the Sri Lankan authorities.
Particulars
This claim was not considered because the IAA erroneously applied s 473DD to it which was wrong because:
a. No assessment had been carried out under s 473DC of the status of that information, and accordingly no proper conclusion could have been reached regarding it under s473DD; and
b. Section 473DD would not apply to properly distinct claim put forward in a review under s 473CC of the Act.
Consideration
Mr Seymour of counsel on behalf of the applicant confirmed that only ground 3 was pressed. Mr Seymour submitted that there were two limbs in relation to ground 3. In relation to the first limb, Mr Seymour submitted that on the proper construction of s 473DC of the Act, the Authority was required to make a finding in relation to whether or not the new information was relevant. Mr Seymour submitted that the Authority had conflated the requirements of s 473DC of the Act with the requirements of section s 473DD of the Act and had approached the assessment under s 473DD out of context.
The second argument advanced by Mr Seymour in relation to the exercise of power under s 473DD of the Act was founded on the conflation by the Authority of what was said to be information and a claim. The new information in the submission constituted identification of the applicant witnessing alleged incidents and information by the applicant asserting a claim on that basis. Mr Seymour submitted that there was a distinction between the information in that regard and that the Authority had failed to recognise the distinction in coming to assess the requirements of s 473DD of the Act.
Mr Seymour took the Court to the decision of Logan J in CDZ16 v Ministerfor Immigration and Border Protection [2017] FCA 967 relevantly at paragraphs [8] -[10], as well as to the decision of Judge Driver in this Court in CVK16 v Minister for Immigration & Anor [2017] FCCA 235, relevantly at [41] – [46]. I do not accept the contention that s 473DC of the Act required the Authority to make an express finding identifying the relevance of the applicant’s information as to the witnessing of an alleged incident and the applicant’s information of asserting that this was a basis for his claim. It was patently relevant. It was patently information meeting the requirements of s 473DC of the Act, and the Authority patently took into account both aspects of the information referring to the potential claim and referring to the alleged witnessing of the incident. There was no failure by the Authority to consider the requirements of s 473DC of the Act. There is no substance in the assertion of any conflating with the exercise requirement under s 473DC of the Act with the exercise of the consideration that the Authority then embarked upon under s 473DD of the Act. The Authority’s reasons are not be read with a keen eye for error. The alleged error of conflation based on the alleged errors in s 473DC of the Act are not made out.
The Authority clearly identified what was patently on its face new information within s 473DC of the Act. No submission was advanced to this Court that the information including the claim, are not new information. The suggestion that there was a distinction between the two is a distinction that was recognised and understood by the Authority given its reference to both the incident and claim. There was no bundling together of an erroneous understanding by the Authority of the requirements of s 473DC or s 473DD of the Act. This is not a case where any other error has been alleged under s 473DD of the Act.
I note that on its face, there is no basis to hold that the Authority has adopted an erroneously narrow construction of exceptional circumstances. Further, the Authority’s reasons in relation to the new information that was received and the reference to exceptional circumstances, identifies consideration of the whole of the provisions in s 473DD of the Act. The Authority’s reasons make the reference to personal information and the reference to information that could have been provided reflect taking into account both limbs of s 473DD(b) of the Act. The Court finds that the Authority did not err in its application of s 473DD of the Act.
No jurisdictional error as alleged in the amended application is made out. Accordingly, the amended application is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 16 November 2017
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