Azj16 v Minister for Immigration

[2018] FCCA 365

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZJ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 365

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority complied with the statutory regime – whether the Immigration Assessment Authority was obliged to invite the applicant to a hearing – whether the Immigration Assessment Authority was required to give to the applicant adverse information for comment – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 425, 473, 473CB, 473DB, 473DC, 473DD, 473DE, 474, 476
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Cases cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

Applicant: AZJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1010 of 2016

Judgment of: Judge Emmett

Hearing date: 14 February 2018

Date of Last Submission: 14 February 2018

Delivered at: Sydney

Delivered on: 14 February 2018

REPRESENTATION

Applicant: Appeared in person with the assistance of a Tamil interpreter

Counsel for the Respondents: Mr Thomas Liu

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1010 of 2016

AZJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 24 March 2016 under Part 7AA of the Act (“the Authority”), which affirmed a decision of a delegate of the first respondent (“the Delegate”) to refuse the applicant a Safe Haven Enterprise (subclass 790) visa.

2. The applicant was unrepresented before the Court this morning although had the assistance of a Tamil interpreter. 

3. On 26 February 2013, the applicant was granted a temporary safe haven visa and a subsequent bridging visa, having arrived in September 2012 by boat from Sri Lanka in circumstances where that boat was intercepted by Australian authorities.

4. On 4 September 2013, the applicant lodged an application for a Protection visa. 

5. On 19 October 2015, the applicant was invited to attend an interview with the Delegate on 12 November 2015.

6. On 12 November 2015, the applicant attended an interview with the Delegate.

7. On 17 February 2016, the Delegate refused the applicant’s visa application on the basis that the applicant did not satisfy the refugee criteria in s.36(2)(a) of the Act, nor did he meet the criteria for complementary protection in s.36(2)(aa) of the Act.

8. The applicant is a Tamil male. He made the following claims:

   i)In 2006, members of the Karuna Group arrested him at his home on suspicion of having Liberation Tigers of Tamil Eelam (“LTTE”) links.

   ii)The applicant was then detained in a jungle for two months, during which time he was beaten and tortured.

   iii)The applicant escaped and Karuna Group members came to his house looking for him.

   iv)In 2007, the applicant was stopped at a military checkpoint and was detained for two days by the Sri Lanka Army (“SLA”) and subsequently released.

   v)From December 2007 to February 2011, the applicant lived and worked in Qatar. 

   vi)After his return to Sri Lanka in 2007, members of the Karuna Group came several times to his house at night searching for him. 

   vii)The Karuna Group believes the applicant has links to the LTTE because the LTTE political office was close to the applicant’s home and the Karuna Group continued to look for him.

   viii)The applicant is at risk of being jailed because he fled Sri Lanka illegally in 2012 and claimed asylum in Australia. 

   ix)The applicant comes from a former LTTE controlled area and all Tamil males are suspected of being involved with the LTTE.

   x)Two of the applicant’s brothers fled Sri Lanka and went to Qatar, where they remain, as their lives are in danger. 

   xi)The applicant’s work as a goldsmith and the wealth of his mother places him at risk of harm due to being imputed with the profile of a wealthy businessman. 

9. The Authority’s review was required to be conducted in accordance with Part 7AA of the Act, which was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The aim of Part 7AA of the Act was to provide a fast track means of processing protection visa applications of those persons who arrived in Australia as unauthorised maritime arrivals after 13 August 2012 and before 1 January 2014.

10. Under the Part 7AA of the Act, the refusal to grant an applicant a protection visa must be reviewed by the Authority as soon as reasonably practicable after the decision is made.

11. Prior to the Authority’s review and pursuant to s. 473CB of the Act, the Secretary of the Department of Immigration and Border Protection must give to the Authority a statement of the decision of a delegate of the first respondent who conducted the interview; and all material provided by the applicant to that decision maker as well as any other material in the possession of the Department considered to be relevant to the review.

12. Division 3 of Part 7AA of the Act provides for the conduct of the review.

13. Section 473DB of the Act provides that the Authority must consider the review material without accepting or requesting any new information and without interviewing the applicant.

14. Section 473DC of the Act provides that the Authority may obtain documents or information that were not before the Delegate where the Authority considers that information or where documents to be relevant. However, the Authority does not have a duty to get, request or accept any new information, whether or not the Authority is requested to do so by an applicant. The Authority may also invite a person orally or in writing to give new information in writing or at an interview, whether conducted in person, by telephone or in any other way.

15. Pursuant to s.473DD of the Act, the Authority must not consider any new information unless the Authority is satisfied that there are exceptional circumstances to justify considering the new information and the applicant satisfies the Authority that the new information was not and could not have been provided to the delegate; or, that it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims.

16. Pursuant to s.473DE of the Act, the Authority must give to an applicant, particulars of any new information if it is to be considered by the Authority and would be the reason or part of the reason for affirming the fast track reviewable decision. Such information does not include new information that is not specifically about the applicant and is just about a class of persons of which the applicant is a member or is non-disclosable information.

17. In the case before this Court, the Authority noted that it had regard to the material referred by the Secretary under s.473 of the Act and that no further information was obtained or received. The Authority referred to documents provided by the applicant to the Delegate in support of his application.

18. One of those documents was a letter dated 31 December 2012 from a pastor of the Shadow of Christ Church in Batticaloa stating that the applicant was a member of the church’s Christian holy society and that he had come to Australia for safety. The Authority placed no weight on the pastor’s letter in circumstances where the applicant had confirmed at the interview with the Delegate that he was a practising Hindu and not a member of the Shadow of Christ Church and was unable to name the church pastor.

19. Other information provided in the applicant’s visa application form confirmed that no other family member of the applicant has experienced harm or threats of harm in Sri Lanka. In light of that information, the Authority placed no weight on the information also provided in the application that two of the applicant’s brothers fled from Sri Lanka to Qatar because their lives were in danger.

20. In accordance with country information before it, the Authority accepted that the Karuna Group was active in the applicant’s home area in the relevant period and also accepted that he was abducted from his home and detained in 2006.

21. The Authority also accepted that during that detention, the applicant may have been subjected to beatings and other harm that amounted to torture. The Authority accepted that the applicant was released by the Karuna Group, or allowed to escape, and found that such conduct indicated a lack of ongoing interest in the applicant from the Karuna Group. The Authority also accepted that the applicant was detained at an SLA checkpoint in Batticaloa region in 2007 and held for two days then released.

22. In finding that the applicant was not of ongoing interest to the Karuna Group, the Authority also had regard to the applicant’s information given at interview that, after being allowed to escape detention by a sympathetic Karuna Group member in 2006, he returned to his home and remained there until he departed for Qatar around a year and a half later in 2007.

23. The Authority did not accept as plausible the applicant’s statements that the Karuna Group members were looking for him within a week of his escape and that he evaded their detection simply by staying in the evenings at his aunt’s house five houses away from his home.

24. The Authority also noted that after escaping the Karuna Group’s attention, he had travelled alone from his home to the passport office in Colombo to obtain a passport. The Authority found that the fact that the applicant travelled openly and unhindered from his district through government-controlled areas to and from Colombo to obtain his passport was a strong indication that he was not of interest to the Karuna Group.

25. The Authority then concluded that the applicant was not of interest to the Karuna Group or any other paramilitary organisation and therefore did not face a real chance of persecution from the Karuna Group or any other paramilitary organisation now or in the reasonably foreseeable future.

26. In relation to the applicant’s claimed detention by the SLA in 2007, the Authority accepted that he had been detained and held for two days. However, he was then released without any further issue, thereby leading the Authority to find that such conduct indicated strongly that the Sri Lankan authorities had no ongoing interested in the applicant.

27. The Authority also noted that the applicant used his Sri Lankan passport to depart Sri Lanka in 2007 without issue soon after the encounter with the SLA. He was also able to re-enter Sri Lanka in 2011 unhindered. Those matters led the Authority to conclude that it was not satisfied that the applicant faces a real chance of persecution from the Sri Lankan authorities, including the SLA, as a result of any imputed involvement with the LTTE.

28. The Authority considered whether the applicant may have an imputed profile as a wealthy businessman and did not accept that the applicant’s profile could be so characterised either as a businessman or as a wealthy businessman. Moreover, the Authority found there was nothing to indicate that, due to their wealth, the applicant’s mother or siblings encountered any adverse attention in the past or that they would do so in the reasonably foreseeable future.

29. Accordingly, the Authority was not satisfied that the applicant faced a real chance of persecution due to being imputed with the profile of a wealthy businessman or as a family member of a wealthy person.

30. The Authority then considered the applicant’s claim to fear harm from Sri Lankan authorities as he had been imputed with LTTE links due to the proximity of his home to the LTTE office, which he stated was located in the house next door to his home.

31. The Authority did not accept that mere proximity to the LTTE would give rise to an imputed association with LTTE and that, in any event, evidence before the Delegate was to the effect that the LTTE political office was located in Batticaloa town and not next door to the applicant’s home which was in a different district.

32. The Authority noted that this information was put to the applicant at his protection visa interview and that the applicant had responded that, after the peace accord, the LTTE had an office near his home. However, the Authority found that this claim was not supported by country information, which placed the location of the LTTE office some two hours from the applicant’s home.

33. The Authority found there was no evidence to suggest that the applicant had been imputed with LTTE links and no evidence that the applicant or any of his family members supported the LTTE or had any links to the LTTE.

34. Accordingly, the Authority was not satisfied that the applicant faced a real chance of persecution from the Sri Lankan authorities, including the SLA, as a result of any imputed involvement or association with the LTTE.

35. The Authority then considered whether the applicant faced harm upon return to Sri Lanka by reason of his illegal departure from Sri Lanka and as a failed asylum seeker. The Authority accepted that the applicant may be subjected to interrogation and questioning on return to Sri Lanka and may be monitored by the Authorities for a period of time.

36. However, in light of the Authority’s findings that the applicant has not previously been politically active, the Authority was not satisfied that the applicant would be subjected to harm when questioned by authorities on arrival or afterwards. The Authority had regard to country information, which it identified, that the applicant in those circumstances would most likely be issued with a fine and released; and, if he pleaded not guilty, he would be released on his own personal surety.

37. The Authority found that the applicant would not be subject to a custodial sentence and found that any fine for his illegal departure would not amount to serious harm.

38. In the circumstances, the Authority was not satisfied that the applicant faced a real chance of serious harm for his illegal departure if he returned to Sri Lanka now or in the reasonably-foreseeable future.

39. The Authority noted that, in any event, any investigation, prosecution and punishment for the applicant’s illegal departure would be the result of a law of general application and, accordingly, did not amount to discriminatory persecution.

40. The Authority found that, given the applicant’s illegal departure from Sri Lanka and the duration of his residence in Australia, Sri Lankan authorities may conclude that he sought protection in Australia. However, the Authority found there was no indication that the Sri Lankan authorities would become aware of the details of the applicant’s protection claims or would be concerned by the applicant’s imputed asylum claim such that they would be motivated to harm him for those reasons.

41. The Authority then considered whether the applicant met the complementary protection criterion and ultimately concluded that he did not. That conclusion was based on the findings that it had made and which are referred to above. Those findings by the Authority were open to it on the evidence and the material before it and for the reasons it gave.

42. The applicant confirmed that he attended a directions hearing before a Registrar of this Court on 9 June 2016. On that occasion, the applicant was given leave to file and serve an Amended Application, any further evidence and submissions in support of his application. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.

43. The applicant confirmed that he had not filed any documents either in accordance with those directions or otherwise and had no further documents to provide to the Court this morning.

44. The applicant confirmed that he continued to rely on the grounds of his initiating application as follows:

    “1. I believe the decision made by the Immigration Assessment Authority was not made according to law, I am searching for a lawyer to represent me in court.

    2. The Immigration Assessment Authority made a finding without inviting me for a hearing/interview or putting for comment adverse information that the Immigration Assessment Authority relied upon in drawing an adverse inference.”

45. Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of those grounds.

46. I explained to the applicant that the role of this Court was very different to that of the Authority and that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions. I explained that the only issue before this Court was whether or not the decision of the Authority was made according to law. I explained that there was a statutory regime imposed on the Authority for the conduct of its review and that, if its review was conducted in accordance with that regime, the fact that the applicant may disagree with it was not sufficient to demonstrate any error on the part of the Authority.

47. In its terms, Ground 1 does not disclose any error capable of review by this Court. I asked the applicant if he was able to say why it was that he believed that the Authority’s decision was not made according to law. It was in response to that question that the applicant said that the Authority found that he was lying. The applicant declined to say anything further.

48. In the circumstances, ground 1 does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are,  otherwise invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

49. I also explained to the applicant that insofar as ground 1 said that he was searching for a lawyer to represent him in Court, the fact that he was not represented was not capable of demonstrating error in the present circumstances on the part of the Authority.

50. I reminded the applicant that his application had been filed on 27 April 2016 and that at least from 9 June 2016 he had had the contact details of legal services providers and translating and interpreting services in documents headed in his own language.

51. The applicant did not suggest that he had made any attempt to approach any lawyer.  However, I did not explore that issue with him further.

1. Accordingly, ground 1 is not made out.

2. In relation to Ground 2, the applicant’s complaints again did not demonstrate any jurisdictional error on the part of the Tribunal in circumstances where its review was conducted in accordance with the statutory regime. 

3. As is clear from the sections of the Migration Act referred to above the Authority was required to conduct its review without inviting the applicant to a hearing. It was not required to put for comment to the applicant any adverse information upon which it may rely in drawing an adverse inference where that information was not specifically about the applicant and was otherwise non-disclosable information.

4. A fair reading of the Authority’s decision record makes clear that the only information to which the Authority had regard was the material provided to it by the Secretary, being the material that was before the Delegate.

5. It is clear that Part 7AA of the Act provides for the Independent Assessment Authority to evaluate for itself the material considered by a delegate. The Authority was not required to notify the applicant that it is considering taking a different view adverse to the applicant that may be different in relation to the consideration of the same material by the Delegate. The Authority also was not required to put those concerns to the applicant or to provide an opportunity to respond (see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (“DGZ16”) at [72] per Reeves, Robertson and Rangiah JJ).

6. In DJZ16, the Full Court stated that there was no requirement in Part 7AA of the Act which required the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, as is contemplated in s.425 of the Act.

7. As section 473DB of the Act makes clear, the Authority must review the fast-track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the applicant.

8. In the circumstances, no jurisdictional error is identified by the applicant in the grounds of his application and no jurisdictional error is apparent on the face of the Authority’s decision record.

9. The Authority’s decision record makes clear that the Authority understood the claims being made by the applicant and had regard to all material provided to it by the Secretary. The Authority identified independent country information to which it had regard. The Authority then made findings based on the evidence in the material before it which were open to it for the reasons it gave. The Authority’s conclusions were based on the findings made by it and to which it applied the correct law.

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

11. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere with the Authority’s decision and the proceeding before this Court commenced by way of application filed on 27 April 2016 should be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  19 February 2018