BDC17 v Minister for Immigration
[2018] FCCA 1161
•7 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDC17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1161 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – no matters or principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 36(2A), 47, 65, 414, 424, 424A, 473CC, 473DE |
| Applicant: | BDC17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 543 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 7 March 2018 |
| Date of Last Submission: | 7 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 7 March 2018 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Mr Tran |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,260.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 543 of 2017
| BDC17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore)
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the IAA”) dated 24 February 2017. The IAA affirmed the decision of a delegate of the first respondent to refuse to grant the applicant a Safe Haven Enterprise visa, a protection visa.
The applicant is a citizen of Sri Lanka of Sinhalese ethnicity and Catholic faith. The applicant arrived in Australia on 18 September 2012 as an unauthorised maritime arrival. On 24 May 2016 the applicant applied for the protection visa. On 11 January 2017 a delegate of the Minister refused to grant the applicant the visa. On 24 February 2017 the IAA affirmed the delegate’s decision. On 17 March 2017 the applicant applied for judicial review of the IAA.
The matter was originally listed before me on 8 February 2018 for hearing. A Registrar of the court had made directions for the applicant to file an outline and any amended material before that date. The applicant had an affidavit, and an amended application prepared by Ms Sulaika Dhanapala. These documents were filed and served.
For reasons that remain unclear, Ms Dhanapala did not file a Notice of Address for Service to indicate she was acting on behalf of the applicant. When the applicant appeared on 8 February 2018, he said that he expected that Ms Dhanapala would be at court to appear for him and she was not. Whether the applicant had in fact engaged her to appear on that date or not was unclear. I took a cautious approach of adjourning the matter to 14 February 2018 for hearing in case there was some misunderstanding about the date or the appearance of
Ms Dhanapala.
On 14 February 2018 the applicant still did not have a solicitor appearing for him and told me that he had an appointment the next day with a free legal service. Given the history of the matter, I again adjourned the case to enable the applicant to pursue legal advice, setting the matter for hearing today.
The applicant attended today without any documents. The applicant sought an adjournment to enable him to have a lawyer look at his application. Having regard to the fact that the application was filed nearly a year ago; that I had adjourned the hearing twice to enable the applicant to obtain a lawyer or provide evidence of a specific plan around representation and that the applicant attended today without any evidence or specific plan about legal representation, I declined to further adjourn the application.
I turn then to the decision of the IAA. The IAA summarised the applicant’s claims in [3] of its decision as follows:
· He fears persecution and/or substantial discrimination in the form of psychological harm, physical assault, arbitrary arrest and detention, imprisonment and possible death at the hands of the Sri Lankan authorities or political groups or other non-state actors on account of:
· his status as an orphan with no male protector;
· as a young orphan from the North West (sic) Province of Sri Lanka;
· his imputed political opinion in favour of the Sri Lankan Freedom Party (SLFP) on account of the political opinion of his adoptive parents;
· as a young person who departed Sri Lanka illegally to seek asylum, as a forced returnee with no documents and as a young male forced returnee; and
· as he has no male protector and cannot gain protection from his family, and is young and vulnerable, having limited education.
The IAA noted that the applicant’s claims for protection developed over time; see [6] to [18]. Given the significant changes and inconsistencies in the applicant’s evidence, the IAA did not find him to be a credible witness. The IAA stated that he had “exaggerated, embellished and fabricated his evidence in order to boost his claims for protection”: see [19].
The IAA did not reject everything the applicant had said and accepted some of his claims, saying:
20. Based on how he presented on the recording of the Arrival re-interview, the contemporaneousness of the information he gave at the Arrival re-interview to his time living in Sri Lanka, the consistency between his information at that interview and the information he supplied to the DIBP removals officer as reported in the 18 January 2013 email, and the problems with his later evidence discussed above, I accept the applicant’s claims as set out in his Arrival re-interview. I accept that he lived with his parents in the same address throughout his time in Sri Lanka; he left Sri Lanka in August 2012 to travel to Australia and his father paid 5 lakhs for his trip; he came to Australia because of financial difficulties related to his father’s business as a fisherman; that he was not employed in Sri Lanka; that he went to school from 2001 to 2011 and completed Year 11; and at that time he was interested in returning to Sri Lanka, and his parents were happy for him to return to Sri Lanka, depending on what financial assistance he could obtain from the IOM or Australian Government.
The IAA did, however, reject many of the applicant’s claims, saying:
21. I reject the applicant’s claims that he was adopted; that his parents abused or mistreated him as claimed; that he left his parents’ home to live at the beach and/or his Aunty’s place; that he worked as a fisherman before he left Sri Lanka; that he was harassed, fought with or was otherwise harmed by a gang of young men on the beach because the young men were supporters of any political party or for any other reason; that his parents are supporters of the SLFP; that he or his Aunty is a supporter of the UNP; and that, if returned to Sri Lanka, he will be without any family support.
IAA Findings
The IAA accepted that the applicant left Sri Lanka because of financial difficulties connected with his father’s fishing business: see [25]. However, the IAA did not accept that the financial difficulties were of such an extent that it threatened the applicant’s capacity to subsist or would otherwise constitute serious harm now or in the reasonably foreseeable future: see [27].
Having regard to country information, the IAA did not accept that there was a real chance that the applicant would, as a young Sinhalese male from Negombo faced societal discrimination amounting to serious harm upon his return to Sri Lanka now or in the foreseeable future: see [28]. The IAA accepted that the applicant was Christian: see [29]. However, having regard to the country information and the applicant’s circumstances, the IAA did not accept that he faced a real chance of harm on account of his Christian faith: see [30] to [32].
The IAA accepted that the applicant, on return to Sri Lanka, would be considered by the authorities to be a failed asylum seeker who departed Sri Lanka illegally: see [33]. Having regard to country information, the IAA was not satisfied that the applicant would face a real chance of serious harm on the basis of being a returned asylum seeker or for his illegal departure: see [33] to [48].
Having regard to all the applicant’s evidence and the country information, the IAA found:
49. I accept that the applicant may experience some societal discrimination but, as discussed, not at a level that could be considered serious harm. I also accept that he will face some non-discriminatory penalties because of his illegal departure from Sri Lanka. However, considering the applicant’s circumstances as a whole I am not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future, either in the period following his arrival or on his return home, whether because of his illegal departure, having made a claim for asylum in Australia, due to his father’s financial difficulties, as a Christian, as a young Sinhalese male from Negombo or any combination of these. The applicant does not have a well-founded fear of persecution within the meaning of s.5J.
The IAA concluded that the applicant did not meet the definition in s.5H(1) of the Migration Act 1958 and therefore did not come within s.36(2)(a).
The IAA accepted that the applicant may face some level of societal discrimination, but was not satisfied that any discrimination the applicant may face amounted to significant harm as defined in ss.36(2A) and 5 of the Act: see [53]. Having found that there was not a real chance of harm to the applicant because of his father’s financial difficulties, that he was a Christian or that he would be a returned failed asylum seeker from Australia, the IAA was also satisfied there was no risk of significant harm if he returned to Sri Lanka: see [54].
The IAA assessed the risk of harm to the applicant as a result of his illegal departure from Sri Lanka and was not satisfied that he would face real risk of significant harm during any processing at the airport from any brief period of detention or any bail surety requirements or fine that may be imposed: see [55] to [56].
In light of these findings, the IAA did not accept that there was substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there was a real risk that he would suffer significant harm: see [57] to [59].
The amended application filed on 24 January 2018 sets out four grounds for judicial review with numerous particulars. These grounds appear to contain 13 separate claims as follows:
1)The IAA failed to consider six different aspects of the applicant’s claims on the basis of:
i)Being a young person without adult protections;
ii)Being a failed asylum seeker;
iii) His unlawful departure from Sri Lanka;
iv) Beach gangs;
v) Data breach; and
vi) The complementary protection provisions.
2)The applicant was denied natural justice as a result of:
i)Questioning that prevented him putting his case;
ii)No account of his limited education, age and language being considered;
iii)A failure to accept his account as credible;
iv)Undue weight being given to consistencies in his evidence.
3)That the IAA failed to comply with s.424(1) in failing to set out its concerns with respect to his evidence and s.424A(1) by failing to provide him with copies of the relevant material.
4)It is alleged that the IAA failed to review and consider the application for the purposes of ss.47, 65 and 414 of the Act.
At the hearing before me the applicant raised three generalised matters, which I will deal with in due course.
The applicant filed an affidavit in support of the amended application, which was witnessed by Ms Dhanapala. The affidavit seems to be a brief history of the applicant’s background and claims for protection, but contains nothing that would be admissible on the judicial review application. In substance, the affidavit appears to support a claim for merits review, which is not open to the applicant.
Ground 1
I have identified the six separate parts of ground 1 above, which I will now deal with. Ground 1(i) must fail as the issue is identified in the second-last sentence in [8] of the decision. The IAA rejected much of the factual foundation for this claim in [20] to [21] before rejecting the claim in [28].
Grounds 1(ii) and (iii) must fail as the IAA identified these issues in paragraph [22] and discussed them at length in [33] to [48].
Ground 1(iv) must fail as the issues with respect to beach gangs were considered in [8], [12], [14] and [19] before being rejected in paragraph [21].
Ground 1(v) was not the subject of a claim by the applicant before the delegate, but considered in any event: see pp.145 to 146 of the court book. This issue was also considered by the IAA at [22] and [40] of their decision.
Ground 1(vi) alleges that the complementary protection provisions were not considered. However, plainly they were considered as they were discussed at length in [51] to [59]. None of the claims in ground 1 appear to have any real basis for founding a judicial review proceeding.
Ground 2
Ground 2(i) alleges that the conduct of the IAA prevented the applicant from putting his case. There was not a hearing before the IAA, although the applicant never requested one. There are no submissions that the interviews that the applicant had before the matter went to the IAA fell within this category. There is no transcript before me, nor audio recordings to provide a basis for the claim, nor any description of any examples that would give rise to concerns of this type. The way that this ground was drawn gives rise to a concern that the lawyer thought that it was an Administrative Appeals Tribunal decision, not an IAA decision and proceeded to make an ambit claim without foundation.
Ground 2(ii) overlooks the fact that the IAA specifically had regard to the applicant’s age, both at his time of arrival in Australia and at the time of decision: see [5]. The ground overlooks that the IAA noted that the applicant said he had been at school up until grade 11: see [6], [12] and [15]. At [17] to [20] of the decision, the IAA has careful regard to the applicant’s evidence and manner of giving evidence on previous occasions. There is nothing to indicate there were issues about language, translation or understanding that were overlooked by the IAA.
Ground 2(iii) simply seeks a merits review of the IAA’S decision to reject the applicant’s evidence on the basis of his credibility.
Ground 2(iv) is unusual in that it says that the IAA gave undue weight to inconsistencies in his version. Having regard to the consistencies or inconsistencies in the versions is central to the IAA’s task. The differences in his versions were significant, as is discussed at [17] to [21] of the decision. This claim seeks merits review and must be rejected.
Ground 3
Ground 3 alleges failures to comply with ss.424 and 424A of the Act. Neither section applies to the IAA. As with an earlier ground, it appears that this was drawn without regard to the fact that this is not an Administrative Appeals Tribunal decision, but is an IAA decision. Obligations of this type or style with respect to the IAA only appear under s.473DE of the Act, which applies only to new information. The applicant did not seek to put new information before the IAA.
Even looking at the underlying arguments in these grounds, one is faced with the difficulty that the applicant seems to be complaining that the IAA failed to disclose its thought processes to him before making a decision. The issues were raised at the delegate stage: see the delegate’s decision at court book p.139. There was no obligation on the IAA to make known to the applicants its thought process during the course of the review it was undertaking.
Ground 4
The fourth ground appears to be a generalised complaint about the outcome. I see no real relevance of ss.47 or 65 in the context of this case. Section 414 does not apply to the IAA, which carried out its role under s.473CC.
Other issues raised at the hearing
I note that the counsel for the Minister had attempted to identify other possible grounds in his written submissions. However, they are not established for the reasons set out in those submissions, nor were any of them pursued by the applicant.
Before me the applicant said that he thought the IAA had erred in that it “did not find full information”. When pressed, it seemed that the applicant was making a generalised complaint about the finding of the IAA in rejecting his adoption claims and the finding concerning the data breach.
The applicant also alleged that the IAA didn’t look at all of the material. However, the applicant was not able to identify any specific part of the material that he says the IAA did not consider. The applicant simply expressed his concerns about the beach gang finding.
The third matter the applicant raised in the oral hearing was a complaint that the IAA was not sympathetic enough towards him. This, again, appears to have simply been a merits review request in the context of this case.
Conclusion
In the circumstances, I am not satisfied that the applicant has established any ground for judicial review. I therefore dismiss the application.
The Minister has been entirely successful. I order costs in favour of the Minister. The Minister seeks the scale fee, which appears to me to be particularly reasonable in this case, given the number of additional events and I therefore order that the applicant pay the Minister’s costs fixed at $7,260.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 9 May 2018
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