Bco17 v Minister for Immigration
[2019] FCCA 2242
•24 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCO17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2242 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – template grounds of review advanced – whether the Authority erred in considering new information considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 473CB, 473DD |
| Cases cited: AQU17 v Minister for Immigration [2018] FCAFC 111 SZIFI v Minister for Immigration (2007) 238 ALR 611 |
| Applicant: | BCO17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 779 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application filed on 16 March 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 779 of 2017
| BCO17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 21 February 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions filed on 13 August 2019.
The applicant is a citizen of Sri Lanka, who arrived in Australia at Christmas Island on 2 October 2012 as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 62
On 11 February 2016, the applicant made an application for a temporary protection visa.[2]
[2] CB 93
On 24 May 2016, the applicant attended an interview with the delegate.[3]
[3] CB 117; the reference in the delegate’s decision record at CB 156.9 to an interview on 24 March 2016 appears to be a typographical error
On 7 September 2016, the delegate refused to grant the applicant a temporary protection visa.[4]
[4] CB 154-172
The delegate's decision was a fast track reviewable decision and was referred on 13 September 2016 by the Minister to the Authority for review.[5]
[5] CB 173
The applicant provided to the Authority a submission in English, an untranslated document and a media article.
On 21 February 2017, the Authority affirmed the decision under review.[6]
[6] CB 190
Applicant’s claims
The applicant claimed to fear harm on account of his Tamil ethnicity, his imputed support of the Liberation Tigers of Tamil Eelam (LTTE), his political activism in petitioning for Tamil resettlement, as a Tamil with perceived links to the LTTE and as a returned or failed asylum seeker. In support of those claims, the applicant recounted the following events:[7]
[7] CB 137–8 and 194–6
a)in 1989, his family was displaced for the first of many times due to war;[8]
[8] CB 85: [7]
b)in 2006, the applicant was detained by the Criminal Investigation Department (CID) and interrogated for about eight hours over his links to the LTTE because he lived in an LTTE area;[9]
[9] CB 86: [9]
c)in 2008, he was arrested by the Navy while fishing and he was beaten and detained for four days;[10]
[10] CB 195
d)in April or May 2012, the applicant attended a rally and met a Minister from the Eelam People's Democratic Party (EPDP) who indicated that the government would consider allowing people to resettle in his village (and other areas) if he collected enough signatures;[11]
[11] CB 86: [10]-[11]
e)the applicant, his cousin Sooty and his friend Ananth collected about 2,500 signatures on their petition, which they presented to the Minister's office;[12]
f)around 15 days later, the CID requested the applicant to come in for investigation, questioned him about his role in the petition and threatened to kidnap him;[13]
g)about a week later, the applicant witnessed Sooty being abducted by a white van;[14]
h)he heard that Sooty was being held on the CID fourth floor because he had collected signatures;[15]
i)the applicant began to receive threatening phone calls so he destroyed his SIM card and went into hiding;[16]
j)within 15 days of Sooty's arrest, the applicant departed Sri Lanka by boat;[17]
k)the CID asked the applicant's wife where he was and she said he had gone fishing;[18]
l)in 2013, the applicant's mother was injured in a protest and her photo appeared in the paper;[19]
m)Ananth also went into hiding and has been in Switzerland since 2014 or 2015;[20] and
n)the applicant fears harm from the EPDP or paramilitary groups.[21]
[12] CB 86: [12]
[13] CB 195
[14] CB 86: [13]
[15] CB 87: [15] or possibly army intelligence, see CB 195
[16] CB 87: [16]–[17]
[17] CB 195
[18] CB 87: [18]
[19] CB 159: [34]; CB 195
[20] CB 88: [21]
[21] CB 88: [22]–[24]
The Authority decision
The Authority accepted some of the applicant's claims but rejected others on the basis of adverse credibility findings, or because they did not give rise to a real chance of serious harm or a real risk of significant harm. The Authority made the following key findings:
a)it accepted that the applicant was involved in collecting signatures for a petition;[22]
b)due to a combination of omissions from his original claims and an incongruity between his claimed actions and the level of official interest they generated,[23] it did not accept the claims regarding the events following the petition;[24]
c)it accepted that the applicant may have been detained by the Navy and the LTTE during the war;[25] and
d)it found that neither the applicant nor his family had links or were perceived to have links to the LTTE beyond their residency in a former LTTE area.[26]
[22] CB 196: [9], 198: [18], 199: [22]
[23] CB 196–8: [11]–[16]
[24] CB 196: [10], 198: [17]
[25] CB 198: [19]
[26] CB 198: [19]
In light of its factual findings and country information, the Authority did not accept that the applicant would face harm on account of his role in petitioning or the land resettlement issues,[27] or that the ongoing impact of the displacement or his inability to return to his village threatened his capacity to subsist or otherwise amounted to serious harm.[28]
[27] CB 199: [22]
[28] CB 200: [23]
Having regard to country information and the applicant's profile,[29] the Authority did not accept that the applicant would face harm for reason of his Tamil ethnicity, his imputed political opinion or perceived links to the LTTE.[30]
[29] CB 200: [24]–[27]
[30] CB 200-201: [25], [28]
With regards to the applicant's fear of harm from the EPDP or paramilitary groups, the Authority was not satisfied that the applicant's fear of harm was more than remote.[31]
[31] CB 201: [29]
In relation to the applicant's illegal departure, the Authority found that any experiences of penalties on return would not amount to serious harm and that the applicant would face “a law which applies to all Sri Lankans”.[32]
[32] CB 202–204: [30]–[38]
For those reasons, and considering the applicant's claims cumulatively,[33] the Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act 1958 (Cth) (Migration Act).[34] For the same reasons, the Authority found that the applicant did not satisfy the complementary protection criterion.[35] In this context, the Authority also made specific findings to the effect that the applicant would not face significant harm on account of his displacement[36] or his illegal departure.[37]
[33] CB 204: [39]
[34] CB 205: [41]
[35] CB 206: [50]
[36] CB 205–206: [45], [49]
[37] CB 206: [46]–[48]
The current proceedings
These proceedings began with a show cause application filed on 16 March 2017. The applicant continues to rely upon that application. There are five unparticularised grounds in it:
1. Identifying wrong issues.
2. Asking wrong questions.
3. Ignoring relevant materials.
4, Relying on irrelevant materials or
5.Incorrect interpretation and/or application to the facts applicable law.
The application was supported by a short affidavit filed with it, which the applicant asked me to receive into evidence. I did so, bearing in mind that attached to that affidavit is a copy of the decision of the Authority. This is relevant to an issue of procedural fairness. I also received into evidence the court book filed on 21 July 2017. The applicant objected to that course, having volunteered at the outset of the trial on 15 August 2019 that he had not received the court book and was disadvantaged because of that. Exhibit R1 is a letter 24 July 2017 from the Minister’s solicitors to the applicant at his nominated address for service enclosing a copy of the court book. The applicant denied receipt of that letter but confirmed that the address was correct. As I put to the applicant, the documents in the court book should not come as a surprise to him. Although the applicant asserted that he could not prepare for the trial of this matter without the court book, he has had the Authority decision since March 2017 and, on his own account from the bar table, only became aware of the existence of a court book after speaking to friends recently who have also been through a process of judicial review in respect of their own visa applications.
The applicant sought an adjournment of the trial so that he could obtain legal advice with the benefit of the court book and the Minister’s written submissions. Although the applicant has had in excess of two years to prepare for the hearing of this matter and could have sought advice in relation to the Authority decision over that period, I granted him the opportunity to make a post hearing submission within 21 days. It was apparent that the applicant was unable to make any oral submissions on any legal issues and he sought a five month adjournment in order to obtain legal advice and make submissions. That period, in my view, would have been excessive and I consider that the period of 21 days afforded him was adequate.
Nothing further was filed.
Consideration
The Minister’s submissions deal appropriately with the grounds of review advanced. I agree with those submissions.
The five grounds are bare assertions which lack sufficient particularity to be meaningful. In particular, the applicant has not identified or articulated the “wrong issues” or “wrong questions”, nor has he identified which “relevant material” the Authority ignored or any “irrelevant material” it relied upon.
It is well‑established that the party seeking to establish jurisdictional error bears the onus of establishing it.[38] Further, the Authority considered the applicant's claims and evidence, applied the correct test and made cogent findings that were open to it.
[38] Minister for Immigration v SZLSP (2010) 187 FCR 362 at [71]
Procedural fairness: Part 7AA of the Migration Act
The Authority had regard to the review material provided by the Secretary under s.473CB of the Migration Act.[39] On 28 September 2016, the applicant provided a submission to the Authority.
[39] CB 194: [3]
On 28 September 2016, Authority received a submission from the applicant in English and two untranslated documents.[40]
[40] CB 186–189
The Authority found that one of the untranslated documents, a media article, had been provided to the delegate and was accordingly not “new information”.[41] Further, to the extent that the submission repeated claims and information that were included with his temporary protection visa application or provided to the delegate at interview, the Authority found these matters that were before the delegate, were not “new information”.[42]
[41] CB 194: [4]
[42] CB 194: [4]
The Authority noted the applicant asserted in the submission that his cousin was kidnapped by unknown persons and his whereabouts until this date were unknown. In contrast, he indicated to the delegate in the temporary protection visa interview that his cousin was taken to the CID office in Colombo, and as at the time of the temporary protection visa interview, remained there. The Authority considered this to be “new information” but found that there was no explanation for the different details the applicant had provided. Accordingly it expressly found that there were no exceptional circumstances to justify considering it.[43]
[43] subsection 473DD(a) of the Migration Act; CB 194: [4]
The Minister notes that the Authority asserted that it had regard to s.473DD(1) of the Migration Act, rather than s.473DD(a).[44] I accept that this is a mere typographical error that does not amount to jurisdictional error.[45]
[44] CB 194: [4]
[45] SZIFI v Minister for Immigration (2007) 238 ALR 611 at [45] per Greenwood J
The Authority understood the cumulative requirements of s.473DD of the Migration Act and did not adopt an “inappropriately narrow understanding” of the phrase “exceptional circumstances”.[46]
[46] cf. BVZ16 Minister for Immigration (2017) 254 FCR 221 at [47], Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 at [31]; AQU17 v Minister for Immigration [2018] FCAFC 111 at [16]–[17] per McKerracher, Murphy and Davies JJ
The Authority also obtained new information from a Department of Foreign Affairs and Trade country report. It found that as this report post-dated the delegate's decision and replaced the report on which the delegate relied, the requirements of s.473DD of the Migration Act were satisfied.[47]
[47] CB 194: [5]
In my view, no jurisdictional error is disclosed by the manner in which the Authority dealt with new information or the applicant’s claims generally.
Conclusion
The applicant has failed to demonstrate that the decision of the Authority is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 September 2019
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
1
6
2