Azr17 v Minister for Immigration
[2019] FCCA 183
•5 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZR17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 183 |
| Catchwords: MIGRATION – Application for judicial review of decision made by the Administrative Appeals Tribunal – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 473B |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 |
| Applicant: | AZR17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 698 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 17 September 2018 |
| Date of Last Submission: | 17 September 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 5 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Chia |
| Counsel for the Respondents: | Ms Liang |
| Solicitors for the Respondents: | HWL Hebsworth Lawyers |
ORDERS
The Amended Initiating Application filed 18 September 2018 is dismissed.
The applicant is to pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 698 of 2017
| AZR17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 13 October 2012.
The applicant travelled to Malaysia with his passport which he says he was forced to hand over to people smugglers otherwise travel to Australia would not occur. He travelled illegally from Malaysia via Indonesia to Australia.
On 2 May 2016 the applicant lodged an application for a Safe Haven Enterprise visa claiming that he feared that should he be returned to Sri Lanka he would face serious harm because of his Tamil ethnicity and imputed political support for the Liberation Tigers of Tamil Eelam (LTTE) and that he fears harm from the Sri Lankan Army and others associated with the Army who were previously members of the LTTE.
The applicant claimed as follows:
a)Prior to 2007 he lived with his family in a village controlled by the LTTE;
b)In 2007 his village was captured by the Sri Lankan Army;
c)Most of the people within the village supported the LTTE movement, the applicant did not. It was assumed that at least one person from each family within the village supported the LTTE movement;
d)The Sri Lankan Army investigated the applicant’s family approximately five times during 2007 and 2008 about their association with the LTTE and told the applicant and his family to remain in their village;
e)The applicant and his family moved from the controlled area as they were told that the LTTE were going to fight the Sri Lankan Army. The applicant returned to his village sometime after and later moved to live in Negombo;
f)The applicant was detained for one day by the Sri Lankan Army in 2007 under suspicion of being associated with the LTTE. His brother was detained for approximately one month under the same suspicions;
g)In 2010 there was a split in the LTTE movement and some moved overseas however upon their return they had joined the side of the Sri Lankan Army. These returned soldiers knew of the individuals who had supported the LTTE and the Sri Lankan Army searched for the applicant; and
h)The applicant has been told by friends that it is no longer safe for him to return to the village or to Sri Lanka in general because he had previously been told by the Sri Lankan Army not to move from the village.
The applicant was refused a Safe Haven Enterprise visa on 6 September 2016 because he did not satisfy subsection 36(2) of the Migration Act 1958 requiring the applicant to be a non-citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person.
The decision for refusal was referred to the Immigration Assessment Authority for review on 12 September 2016, as a fast track reviewable decision.
The Immigration Assessment Authority affirmed the decision of the Minister for Immigration and Border Protection to refuse the applicant a protection visa on 10 February 2017.
The applicant seeks judicial review of the decision made by the Immigration Assessment Authority on 10 February 2017.
At the hearing of the judicial review leave was granted to the applicant to rely on an Amended Initiating Application which had previously been served on the legal representatives of the Minister. Leave was also granted to the applicant to rely on a Supplementary Court Book filed on 14 August 2018.
Determination
A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led the Tribunal to somehow fail to fulfil its duty and function of reviewing the decision of the delegate.
In order to succeed, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error.
The Amended Application relies on two alternative grounds of judicial review, namely that:
a)The Authority’s decision was made in the absence of a jurisdictional fact; and
b)The Authority failed to consider a piece of relevant material or submissions made by the applicant.
GROUND 1
The Applicant asserts that:
a)The decision of the second respondent (the Authority) was made in the absence of a jurisdictional fact.
Particulars:
i)The applicant stated at Court Book page 137 that he had been assessed for refugee status by the United Nations High Commissioner for Refugees (UNHCR) in Malaysia.
b)The Authority failed to form an opinion as to whether the applicant's claim to the UNHCR had been refused. The existence of which opinion was a condition to the existence of a "fast track reviewable decision" and therefore the jurisdiction of the Authority to conduct a review under Part 7AA of the Migration Act 1958.
In essence, the Applicant complains that the Authority failed to assess for itself whether or not it had jurisdiction in light of the definition of an “excluded fast track review applicant” pursuant to s5 of the Act.
There is not dispute that the Applicant is a “fast track applicant” for the purposes of the Act, being an “unauthorised maritime arrival” who entered Australia within the specified period and had not been taken to a regional processing country, in respect of whom the Minister made a determination under s.46A(2) and who made a valid application for a protection visa in accordance with that determination.
The issue that the Applicant raises is that the Authority’s decision was made in the absence of a jurisdiction fact, namely that “in conducting a de novo review of the delegate’s decision, the Authority have formed the opinion that the applicant had not made a claim for protection in another country that had been refused by the UNHCR… In the absence of an opinion on the matter, the applicant was not a ‘fast track review applicant’ and the decision of the delegate was not a ‘fast track reviewable decision’.
The difficulty with the applicant’s submission is that it conflates a number of issues and is inconsistent with the applicant’s own application for the protection visa.
Firstly, the question of whether an applicant is an excluded fast track review applicant is a matter of opinion of the Minister (via his delegate) and not the Authority. This much is evident from the wording of the definition. Secondly, the fact of the referral to the Authority of the decision not to grant the visa, is evidence that the Minister was not of the opinion that the applicant was so excluded.
It was argued on behalf of the Applicant that the Authority had an obligation to satisfy itself that it had jurisdiction by forming an opinion about this particular matter, one way or the other. Aside from the fact that the Applicant seeks to impute a decision making obligation of the Minister upon the IAA:
a)The interpretation of the definition argued for by the Applicant is not consistent with the wording of the definition, that is, to suggest that the Minister had to form an opinion one way or the other is not what the definition provides for;
b)Furthermore, it is difficult to understand how the Minister (and ultimately the IAA if it was in any event bound to do so) could have formed the opinion that the Applicant “had made a claim for protection in a country other than Australia that was refused[1] by the Office of the United Nations High Commissioner for Refugees in that country” when:
i)the Applicant in his application for a safe haven enterprise visa, in answer to the questions “Have you ever registered with the United Nations High Commission for Refugees (UNHCR)?” and “Have you ever been assessed for refugee status by the UNHCR?” respectively asserted that he had registered and that he had been so assessed, that this took place in Malaysia and that “it was approved”[2]; and
ii)the delegate found: “In Malaysia, the applicant sought to register with UNHCR in Kuala Lumpur within one month of his arrival there. At the interview he stated that he was issued an identity card by UNHCR in Malaysia. He further stated that he did not wait for an interview with UNHCR prior to leaving for Indonesia with the purpose of traveling to Australia illegally by boat. The applicant remained in Malaysia illegally for 5 out of 6 months, following which he departed for Indonesia. He remained in Indonesia for 3 months before departing from there for Australia, illegally by boat.[3]”.
[1] Emphasis added
[2] CB 35
[3] CB 189
The Authority accepted “… that the applicant registered with the UNHCR however there was no further information before… [the IAA] about the UNHCR process or the information given therein. The applicant left Malaysia before the UNHCR made a determination in his case and as the current assessment is being conducted under the Migration Act, … [the IAA] is not satisfied that a determination by the UNHCR in Malaysia would be determinative of this review”. The submission by the Applicant that this gives rise to a suggestion that the Authority understood an assessment may have been made but that it did not consider it necessary to decide either way, is a misconstruction of the Authority’s reasons. It was not a comment on jurisdiction. It was an observation as to the Authority’s task of assessing the Applicant’s claims on review, nothing more. The Authority’s statement that the matter was “not determinative” when read in context, does not support the proposition that “it is improbably that the Authority had in fact formed an opinion one way or the other as to whether the applicant’s claim had been refused by the UNHCR” as submitted by the Applicant.
Even if both the delegate and the Authority were wrong about there not being a determination of the UNHCR process, the only other evidence about the issues is that “it was approved”.
Ground 1 is therefore not made out.
GROUND 2
The Applicant asserts that:
a)Further or in the alternative, the Authority failed to consider relevant material.
Particulars:
(i)The Authority failed to consider section 1(c) of the United States Department of State's 2015 Country Report on Human Rights Practices in relation to Sri Lanka which formed part of the "review material" the Authority "must" consider under section 473DB of the Act, or failed to consider the submission based thereupon.
The Applicant alleges that the Authority failed to consider part of the US Department of State’s 2015 report (“2015 Report”). That report was part of the material before the delegate. The Authority had regard to the material referred by the Secretary under s.473B of the Act. The Applicant submits that it may be inferred that the Report was therefore part of the review material.
The Authority found that there were no exceptional circumstances permitting consideration of the reports “which were not before the delegate” but it confirmed that it had considered the applicant’s submissions which referenced “country information that was before the delegate”.
The Applicant submits that the Authority “held that the country reports referenced in the submissions were not before the delegate.” This is a misconstruction of the reasoning of the Authority. The reasons provide as follows: “Referenced in the submission were country reports preceding the delegate’s decision but which were not before the delegate, and therefore constitute new information for the purpose of this review.” This was not a reference to the 2015 Report.
The Applicant submits to the Court that the finding of the Authority that the information before the delegate does not support that Tamils are subject to other discrimination and harassment of a level amount to serious harm, “strongly suggests” that it had not considered a particular part of the 2015 Report to which the Applicant had referred in his submissions.
That submission to the Authority was as follows:
(vii) 11 The US State Department’s 2015 Country Report on Human Rights Practices (USSD Report 2015), Sri Lanka, published on 13 April 2016, noted that: ‘There were credible reports during the year that police and military forces abducted, tortured, raped and sexually abused citizens. The PTA [Prevention of Terrorism Act] allows courts to admit as evidence confessions extracted by torture. ‘In the east and north, military intelligence and other security personnel, sometimes allegedly working with paramility groups, were responsible for the documented and undocumented detention of civilians accused of LTTE (US Department of State…)[4]
[4] The Applicant’s submission to the court at [40] add an additional word to those submissions which do not appear in the Court Book at 222
It is not necessary for a decision maker to refer to every piece of evidence and every contention made by an applicant in its written reasons.[5] The question of the choice of which country information to refer to, or to rely on, is a matter for the Authority.[6] While an inference that the Authority has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons, such an inference is not to be too readily drawn, particularly where, as here, the reasons are otherwise comprehensive and the issue has been identified at one point.[7]
[5] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46]
[6] Nahi v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCA 10 at [11] and [13] referred to in WZAVX v Minister for Immigration and Border Protection [2016] FCA 411 at [32]
[7] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47]
Parts of the 2015 Report are referred to in the Authority’s reasons,[8] relevantly and specifically where the Authority notes that Tamils in Sri Lanka, particularly in the North and East, do face some discrimination and harassment. Furthermore, this appears, on the face of the Authority’s reasons, to be a reference to the same matters as are referred to in the Applicant’s submission to the Authority in respect of the 2015 Report -the very matter the Applicant complains the Authority did not consider.
[8]CB 237 at [28]-[29] footnotes 9 and 10
Ground 2 is therefore not made out.
Determination
The applicant has not satisfied the Court that the Administrative Appeals Tribunal has made a jurisdictional error and accordingly the Amended Initiating Application filed 18 September 2018 is dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 5 February 2019
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