BDL16 v Minister for Immigration

[2017] FCCA 1514

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDL16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1514

Catchwords:
MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority failed to consider the applicant’s claims – certificate under s.473GB – no jurisdictional error identified – application dismissed.

PRACTICE AND PROCEDURE – Application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473GB, 476

Cases cited:

Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

Applicant: BDL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1193 of 2016

Judgment of: Judge Street

Hearing date: 30 June 2017

Date of Last Submission: 30 June 2017

Delivered at: Sydney

Delivered on: 30 June 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1193 of 2016

BDL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under Part 7AA on 12 April 2016, affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and arrived at Christmas Island as an unauthorised maritime arrival on 16 August 2012.

Protection claims

1. The applicant was found to be a Tamil from the Batticaloa District of the Eastern Province. The applicant feared returning to Sri Lanka because he would be at risk of being harmed by Sri Lankan authorities and Tamil paramilitary groups who target Tamil males like the applicant and because of an imputed political opinion that the authorities may wrongly suspect he may be linked to the LTTE. The applicant lodged a valid application for protection on 16 October 2015 and attended an interview before the delegate on 18 December 2015.

2. On 4 March 2016, the delegate refused to grant the applicant a protection visa and found the applicant’s claims not to be credible and did not accept that the applicant was of interest to either the Sri Lankan authorities or paramilitary groups. The delegate found the applicant was not an excluded fast track applicant.

The Authority’s decision

1. On 7 March 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review.

Information before the Authority

1. The Authority’s letter identified that it had been provided with all documents considered relevant by the Department to the applicant’s case. The letter explained that there were only limited circumstances in which the Authority could receive new information. The letter attached a fact sheet and Practice Direction and gave the applicant an opportunity to provide new information and submissions. No step was taken by the applicant to do so.

2. On 4 March 2016, a certificate under s.473GB was issued referring to a specific document which was an identity assessment form in respect to which the certificate was issued pursuant to s.473GB of the Act.

3. The Authority, in its decision of 12 April 2016, identified the applicant’s background and the outcome before the delegate. The Authority identified having regard to the material referred to the Authority under s.473CB. The Authority noted that no further information was provided by the applicant to the Authority.

4. The Authority set out the applicant’s claims. The Authority identified that the applicant provided conflicting information about his claimed detention by the CID. In his visa application, the applicant claimed that in 2010 he was detained, interrogated, and severely beaten by CID officers in a white van. The applicant provided conflicting information in relation to an injury to one of his fingers. The Authority did not accept the applicant was tortured by the Karuna group or the CID and received scars and an injury to his finger as a result.

5. The Authority identified inconsistent and contradictory information in the applicant’s visa interview and found that the extent of the discrepancies was significant in relation to the applicant’s overall credibility.

6. In light of the credibility concerns, the Authority placed no weight on the contents of a handwritten letter purporting to be from the applicant’s wife. The Authority explained that the contradictions and inconsistencies in the information provided by the applicant are of such significance that the Authority did not consider they could be explained by factors such as lapses of memory or stress.

7. The Authority did not accept as credible the applicant’s statements regarding his detention by the Karuna group and the CID and found that the applicant was not detained by the Karuna group and was not detained by the CID. The Authority did not accept the applicant’s claim that, when he returned from Saudi Arabia to Batticaloa District in 2009, members of the Kinano Group were looking for him or that he slept in the jungle to avoid detection.

Refugee assessment

1. The Authority accepted that the applicant may have been forced to undertake basic tasks on behalf of the LTTE as claimed while living in an LTTE controlled area between 1994 and 1999. The Authority noted that the applicant stated in the interview his parents and siblings in Jaffna had not encountered adverse attention from the Sri Lankan authorities and paramilitary groups such as the Karuna group due to their Tamil ethnicity or perceived LTTE connections.

2. Taking that evidence into account, the Authority found the applicant will not be considered to have any actual or perceived links to the LTTE on return to Sri Lanka. The Authority was not satisfied that the applicant will face a real chance of persecution from Sri Lankan authorities including the CID or paramilitary groups such as the Karuna group on return to Sri Lanka now or in the reasonably foreseeable future.

3. The Authority found, on the basis of the country information from DFAT, that the applicant will be free to enter Sri Lanka once all the processing formalities have been completed. The Authority did not accept that there was a real chance that the applicant will suffer harm at any time during the process of re-entering into Sri Lanka. Having considered the applicant’s claims individually and cumulatively, the Authority did not accept that the applicant had a well-founded fear of persecution. The Authority found that the applicant did not meet the definition of refugee in s.5H(1) and did not meet the criterion under s.36(2)(a).

Complementary protection assessment

1. Regarding the issue of complementary protection, the Authority noted that it found that the applicant was not detained or tortured by the Karuna group or the CID. The Authority was not satisfied the applicant will face a real chance of suffering significant harm from Sri Lankan authorities including the CID or paramilitary groups such as the Karuna group on return to Sri Lanka now or in the reasonably foreseeable future.

2. The Authority found that it is most likely the applicant will be free to enter Sri Lanka once border processing formalities have been completed. The Authority was not satisfied there is a real risk that the applicant will face significant harm during the re-entry process to Sri Lanka.

3. The Authority found that there were not substantial grounds for believing as a necessary and foreseeable consequence of the applicant being returned from Australia to the receiving country that there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criterion under s.36(2)(aa) of the Act.

Proceedings before this Court

1. On 30 June 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Ground in the application

1. The applicant’s application filed on 13 May 2016 identifies the following ground:

   1. I believe the IAA decision maker made errors of law, did not consider my claims and my problems on account of my perceived involvement in the LTTE, at the present time I am searching for a lawyer to represent me in the Federal Circuit Court.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant. The Court explained that this meant the Court was considering whether the Authority’s decision was unlawful or unfair.

3. The Court explained that if it was not satisfied the Authority’s decision was affected by relevant legal error, the applicant’s application will be dismissed The Court explained that if it was satisfied the Authority’s decision was affected by relevant legal error, the decision will be set aside and sent back for further hearing. The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from counsel for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Submissions from the bar table

Application for adjournment

1. The applicant commenced his submissions by referring to what he had been told by a lawyer. In relation to the nature of his case, the Court sought to clarify with the applicant whether he was seeking an adjournment. The applicant indicated that he was seeking an adjournment for the purpose of obtaining a lawyer. The applicant maintained that the decision of the Authority was one which was very quick and that there was plenty of evidence that he could adduce and that he was not asked to give evidence.

2. The Court raised with the applicant what would be the utility of granting an adjournment in circumstances where the applicant had had since the filing of his application to obtain a lawyer. The applicant indicated that since the filing of the application, he had spoken to one lawyer. Nothing said by the applicant from the bar table identified any real prospect that the applicant would be able to obtain legal representation if an adjournment was granted. The Court was not satisfied that an adjournment was warranted in the administration of justice and, accordingly, the adjournment was refused.

Substantive oral submissions

1. From the bar table, the applicant maintained his objection in relation to the quick decision and asserted that he did not have the opportunity to give evidence for the review conducted by the Authority. Under Part 7AA the review is intended to be efficient and quick subject to the powers of the Authority to receive new information or to conduct an interview. In the present case, it is apparent from what the applicant said from the bar table that the applicant was notified of the referral and of the opportunity to put on submissions and to provide new information and that the applicant did not do so. Nothing said by the applicant from the bar table identified any jurisdictional error. The Authority was not required to call on the applicant to give further evidence.

Consideration of the ground

1. In relation to Ground 1 in the application, the assertion that the Authority made errors of law is a bare allegation which does not identify any relevant legal error. On the face of the material before the Court, the Authority correctly identified the relevant law. On the face of the material before the Court, the Authority conducted a review in accordance with the statutory regime. On the face of the material before the Court, the Authority complied with the obligations of procedural fairness in giving the applicant an opportunity to put on submissions and to provide new information.

2. The Authority’s decision reflects an orthodox approach to the deliberation upon the applicant’s claims, and no claim was identified that the Authority failed to deal with. On the face of the material before the Court, the Authority took into account the whole of the applicant’s claims and evidence and made adverse findings in relation to the applicant’s alleged concerns in relation to the LTTE. Those findings were open to the Authority and cannot be said to lack an evident an intelligible justification. No jurisdictional error is made out by ground 1.

Certificate under s.473GB

1. The first respondent drew the Court’s attention to the certificate under s.473GB and submitted that the certificate under Part 7AA was not one in relation to which the decision in the Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 and MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 had any application.

2. I accept the first respondent’s submission in that regard. The document the subject of the certificate was an identity assessment form, and in the present case, there is no issue in relation to the applicant’s identity. On the face of the material before the Court, the certificate was a valid certificate. Further, the Court is satisfied in the present case that the non-disclosure of the certificate and the documents the subject of the certificate could not possibly have had an impact on the outcome of the review. In these circumstances any failure to disclosure did not give rise to any practical injustice. No jurisdictional error is made out of the non-disclosure of the certificate or the documents the subject of the certificate.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  21 July 2017