Bau18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2019] FCCA 1775

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAU18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR

[2019] FCCA 1775

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority considered all claims made by the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DD, 476

Cases cited:

CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006]

FCAFC 29

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Applicant:

BAU18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 571 of 2018

Judgment of:

Judge Emmett

Hearing date:

26 June 2019

Date of Last Submission:

26 June 2019

Delivered at:

Sydney

Delivered on:

26 June 2019

REPRESENTATION

Solicitor for the Applicant:

Mr Stephen Hodges
(Stephen Hodges Solicitor)

Counsel for the Respondents:

Mr Greg Johnson

Solicitors for the Respondents:

DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 571 of 2018

BAU18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 5 February 2018 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 19 April 2017 refusing the applicant a Safe Haven Enterprise visa (“SHEV”).
The applicant is a citizen of Sri Lanka and Tamil ethnicity, who fears harm from authorities in Sri Lanka in circumstances where the applicant had been in a refugee camp in India with his family for 23 years since he was 1 year old.
Counsel for the first respondent in written submissions, accurately summarised the background of the matter and the Authority’s decision as follows:
“BACKGROUND
2. The applicant is a citizen of Sri Lanka who arrived in Australia on 8 June 2013 and on 23 November 2016 he applied for a SHEV. He claimed to fear harm if returned to Sri Lanka on the basis of his Tamil ethnicity and imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE). He claimed that his family members had not been involved in any political or pro-LTTE activities prior to leaving Sri Lanka, but that his father had been arrested by the Sri Lankan army for refusing to smuggle weapons into LTTE-controlled areas. The applicant and his family fled to India in 1990. The applicant's father returned to Sri Lanka in 2009 and was informed by family that the authorities were still looking for him. The applicant was detained in India by 'Q branch' for two days and questioned following his father's return to Sri Lanka in 2009. The applicant also claimed to fear harm arising from his participation in protests in India against the Sri Lankan government, and claimed that he was arrested by the Criminal Investigation Department in India. The applicant also raised concerns in relation to having sought asylum in Australia and due to a data breach by the Australian Government in 2014.
3. On 19 April 2017 a delegate of the Minister refused to grant the applicant a visa: CB 137. The applicant's matter was referred to the Authority: CB 162. On 10 May 2017 the applicant, through his migration agent, sent a submission to the Authority: CB 170.
AUTHORITY'S DECISION
4. On 5 February 2018 the Authority affirmed the decision under review: CB 203.
5. The Authority considered whether it could take into account what it determined was new information presented by the applicant in his submission dated 10 May 2017. The new information comprised new claims relating to the applicant's risk of harm in Sri Lanka, six images including of posters relating to a protest that took place on 14 March 2013 and a report from the United Nations Committee Against Torture. The Authority was not satisfied in relation to s.473DD and did not have regard to the new information: [4]-[9]; CB 204-206.
6. In respect of the applicant's claims, the Authority considered the applicant's claim to have suspected LTTE affiliations, finding aspects of the claim to be vague, undetailed and fabricated: [15]-[23]; CB 208-210. It considered his activities in India, in particular the protest activity he claimed to have been involved in. The Authority found the applicant had participated in a protest in 2010 but that his evidence of his involvement in the protest had been inconsistent: [25]; CB 211. It considered the applicant's involvement to have been no more than 'very low level involvement in pro-Tamil diaspora activities': [28]; CB 212. The Authority considered the applicant's political claims but did not find the applicant to be at risk of serious harm for these reasons: [29]-[37]; CB 212-215. It further considered his other claims relating to the Australian Government data breach, his illegal departure and his status as a returning asylum seeker, finding those claims did not give rise to protection obligation: [38]-[48]; CB 215-217. It also considered the applicant's claims by reference to the complementary protection provisions of the Act: [51]-[57]; CB 217-219.
7. The Authority found that the applicant was not entitled to protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Act.”

The proceeding before this Court

The applicant was represented before this Court by his solicitor Mr Stephen Hodges.
Mr Hodges confirmed that the applicant relied on Ground 2 and Ground 3 in the Amended Application, filed on 5 March 2018. Mr Hodges confirmed that the applicant no longer relied on Ground 1. Grounds 2 and 3 are as follows:
“Ground 2
The IAA failed to assess an integer of a claim that was made out on the facts.
Particulars
1. The submissions dated 10 May 2017 to the IAA referred to an integer of a claim that the delegate failed to consider, namely that the applicant "is likely to be exposed to serious harm when he attempts to regularise his status I apply for identity documents (i.e. NIC)".
2. The IAA considered the integer of a claim referred at 1. above to be "new information" [5].
3. The submissions dated 10 May 2017 to the IAA provided the following details in support of the specific submission that was put to the IAA (i.e. that the delegate failed to consider an integer of a claim).
a. “The applicant resided in India as a refugee for over two and a half decades in an Indian refugee camp”.
b. "The applicant does not speak Sinhala, which is a language spoken by the majority in Sri Lanka".
c. That according to DFAT “Monolingual Tamil speakers, including in the northern province can have difficulty communicating with the police, military and other government authorities”.
4. On the basis of the details that were provided to the IAA referred at 3. above the claim (though not explicitly made by the applicant) was an integer of a claim that was made out on the facts, which the delegate did not consider.
5. Therefore the IAA ought to have considered this integer of a claim, instead it formed the view that this integer of a claim was new information and did not consider this claim for reasons outlined at [5], therein lies the error.
Ground 3
The IAA failed to assess a particular social group claim that was made out on the facts.
Particulars
1. The IAA considered the UK Home Office report [26] which stated "some returnees were tortured and interrogated about time spent in southern India".
2. The IAA accepted that since the age of one the applicant resided in a refugee camp in India.
3. The submissions to the IAA stated “... The applicant resided in India as a refugee for over two and a half decades in an Indian refugee camp. The delegate does not appear to have considered a particular social group (PSG) claim made out on the facts ...”
4. The IAA failed to consider that the applicant was a member of a particular social group of persons who had resided in an Indian refugee camp for over two and a half decades in India.
5. The risk of harm the applicant would face due to time he spent in India, namely southern India was not considered and assessed.”

Ground 2

Ground 2 asserts that the Authority failed to consider the applicant’s claim to be at risk of serious harm when he attempts to regularise his status and apply for identity documents if returned to Sri Lanka.
The claim concerning the applicant’s attempt to regularise his status or apply for identity documents was not raised by the applicant prior to the hearing before the Delegate and was not raised before the Delegate. Accordingly, the Authority found that claim to be new information before it.
A new claim may be considered to be new information (see CVK16 v Minister for Immigration and Border [2017] FCA 1434 at [50]-[51]).
The Authority considered the new information in accordance with s.473DD of the Act. Section 473DD provides follows:
“Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”
Ultimately, the Authority concluded that there were not exceptional circumstances to justify considering the new information. The Authority found that while the applicant’s written statement submitted with his SHEV application set out his long residence in India and uncertainty as to his Sri Lankan citizenship, there was nothing to suggest that that information gave rise to a claim that the applicant would be exposed to harm in attempting to regularise his Sri Lankan status or apply for a national identity card. The Authority found the new information to that effect to be no more than a bare assertion unsupported by details or explanation as to why the claim was being made for the first time to the Authority. In particular, the Authority noted that at the SHEV interview the applicant was specifically asked whether there were any practical reasons why he could not return to Sri Lanka. The Authority noted the applicant’s response, which did not include this claim.
The Authority was not satisfied that this new information could not have been provided before the Delegate’s decision was made or that it is credible personal information that, if known, may have affected consideration of the applicant’s claims. As stated above, the Authority was not satisfied that exceptional circumstances existed to justify considering the claim and therefore determined not to consider that new information.
To the extent that Ground 2 also asserts that the Authority failed to consider that the applicant resided in India as a refugee for over 23 years in an Indian refugee camp, did not speak Sinhala, and that, according to Department of Foreign Affairs and Trade (“DFAT”) information, monolingual Tamil speakers can have difficulty communicating with authorities, such claims were specifically considered by the Authority. The Authority referred to DFAT information that indicated that while the processes of returning from Tamil Nadu to Sri Lanka can involve some administrative and lifestyle difficulties, there was no evidence to suggest that individuals would experience official or societal discrimination on their return.
It is well settled that the country information to which the Authority has regard and the weight it gives that information is a matter for the Authority (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
According, Ground 2 is not made out.

Ground 3

Ground 3 asserts that the Authority failed to assess a particular social group, being returnees that may be tortured and interrogated about time spent in southern India and that the applicant had resided in a refugee camp in India since the age of one.
In support, Ground 3 referred to submissions provided to the Authority by the applicant’s migration agent as follows:
“The applicant resided in India as a refugee for over two and a half decades in an Indian refugee camp. The delegate does not appear to have considered a particular social group (PSG) claim made out on the facts, should the applicant be returned to Sri Lanka he would be returning as a failed Tamil asylum seeker who though may have been found not to meet the definition of a refugee by Australia, was however issued a refugee identity card by the Indian authorities which is indicative of the Indian government recognising the applicant to be a refugee.”
The applicant’s solicitor, Mr Hodges, identified the particular social group as follows:
“· Departed Sri Lanka in 1990 as a young child in the company of his parents:
· The family was granted refugee status in India;
· The primary application for refugee status was the applicant's father;
· The father returned to India in 2009 to asses if it was safe for the family to return
· The family continued to remain as refugees in India until the applicant left there in 2013;
· The applicant's parents and brother remain in the refugee camp in India;”
In relation to the claim in Ground 3 referring to independent country information which stated “some returnees were tortured and interrogated about the time spent in southern India”, that statement arose in the context of the Authority’s consideration of the risk of harm to the applicant arising from his activities in India.
Prior to considering the risk of harm to the applicant because of activities in India, the Authority also considered the risk of harm to the applicant from possible suspected Liberation Tigers of Tamil Eeelam (“LTTE”) affiliations in which the Authority rejected any imputed political opinion of the applicant because of his father’s conduct. However, based on country information about the degree of suspicion that attached to Sri Lankan refugees after 1991, the Authority was prepared to accept as plausible that the applicant and other members of his family were frequently questioned by Indian authorities. However, based on expressed concerns by the Authority of the applicant’s evidence that it found to be inconsistent and vague, the Authority rejected the applicant’s claim to have been detained by authorities in India or subjected to questioning about his father’s visit to Sri Lanka.
Thereafter, the Authority considered the applicant’s participation in a protest against the Sri Lankan government. The Authority accepted that the applicant did in fact take part in a protest in India in 2010 against the Sri Lankan government and that Indian authorities may have viewed such activities with some suspicion. However, in light of significant changes, inconsistencies, implausibilities and creditability issues that the Authority found to exist in the applicant’s evidence, the Authority found that the applicant “exaggerated, embellished and fabricated parts of his evidence in order to bolster his claims for protection.”
Nevertheless, the Authority accepted that Sri Lankan authorities remain sensitive to the potential emergence of the LTTE and had been known to monitor diaspora activities. The Authority then noted that a UK Home Office report in 2016 noted that Sri Lankan Tamils, who sought refuge in India during the civil war, were returning in greater numbers and with confidence to Sri Lanka. The Authority noted that that report also assessed that those returnees most at risk of torture and interrogation were those perceived to be a threat to Sri Lanka. The Authority noted that those who participated in diaspora activities, such as attending demonstrations, was not of itself evidence that such a person would attract adverse attention in Sri Lanka.
The Authority found that the applicant’s participation was very “low level involvement in pro-Tamil diaspora activities” and would not be perceived as a threat to the integrity of Sri Lanka as a single state. In fact, the Authority considered it unlikely that the applicant’s participation in a protest in India some 8 years ago was likely to come to light on his return and noted that whilst in Australia, the applicant did not claim to have been involved in any pro-Tamil or pro-LTTE activities.
The applicant’s claim in relation to a suspicion of involvement in the LTTE was expressed to be because he lived in an Indian refugee camp most of his life, that such camps were often suspected as being LTTE sympathisers and because the applicant sought asylum abroad.
The Authority considered in some detail the applicant’s claims to be at risk because of his imputed political opinion generally. The Authority concluded as follows:
“36. In summary, having regard to the information before me, I do not consider the applicant to be at risk of harm for any reason if he is returned to Sri Lanka. It has been approximately 28 years since the applicant left Sri Lanka and he has not returned in that time. As he left when he was an infant, the Sri Lankan authorities cannot hold any concerns that he was involved with the LTTE in Sri Lanka and he does not have a profile that country information suggests he is at risk of harm, now or in the foreseeable future. I do not consider that he would be of any adverse interest to the Sri Lankan authorities or that he faces a real chance of suffering harm, if he returned to Sri Lanka. Overall, I am satisfied that the applicant will not face a real chance of persecution due to any imputed links to the LTTE, for any imputed political opinion, and/or as a Tamil male from the Northern Province, if returned to Sri Lanka, now or in the reasonably foreseeable future.”
The Authority also rejected that the applicant would be discriminated against as an LTTE sympathiser. The Authority noted that the LTTE no longer exist as an organised force in Sri Lanka and found that Sri Lankan authorities could not hold any concerns that the applicant had been previously involved with the LTTE, having left Sri Lanka as an infant.
It is clear from a fair reading of the Authority’s decision record, that a returnee such as the applicant was not a person at risk of torture and interrogation about his time spent in southern India. The Authority considered in detail all the factors that may put the applicant at risk of harm if returned to Sri Lanka and was ultimately not satisfied that any would place the applicant at risk of either serious or significant harm if returned to Sri Lanka.
A fair reading of the Authority’s decision record makes clear that in all its considerations of the applicant’s risk of harm if returned to Sri Lanka, the Authority assessed those claims in the context of the applicant who had resided in a refugee camp in India for 23 years with his family. As stated above, the Authority considered in detail any risk of harm to the applicant arising from his father’s conduct and determined that he was not so at risk.

There was no information before the Authority to suggest that the particular social group identified in the applicant’s migration agent’s submission and quoted above or in the particular social group identified in Mr Hodges written submission placed the applicant at a particular risk of harm. The Authority considered the risk of harm to Sri Lankans who spent time in refugee camps thereby attracting the possibility of being considered LTTE sympathisers. As stated above, the Authority concluded that the applicant was not at risk of serious or significant harm for those reasons or for any others.
The Authority’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The Authority’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Authority’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
According, Ground 3 is not made out.

Conclusion

A fair reading of 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 in support. The Authority identified independent country information to which it had regard.
The Authority made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 26 June 2019