BDT17 v Minister for Immigration
[2018] FCCA 3133
•23 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDT17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3133 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought at hearing to amend ground 6 of the amended application – leave refused. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, ss.46A, 473BB, 473DA, 473GB |
| Cases cited: AYY17 v Minister for Immigration & Border Protection [2018] FCAFC 89 Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 Minister for Immigration & Border Protection v DZU16 (2018) 253 FCR 526 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 |
| Applicant: | BDT17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 818 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 10 July 2018 |
| Date of Last Submission: | 10 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Silva |
| Counsel for the First Respondent: | Mr B D Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 818 of 2017
| BDT17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who lodged an application for a protection visa on 21 December 2015[1]. That application was refused by a delegate of the Minister for Immigration on 10 January 2017. On 24 February 2017, the Immigration Assessment Authority made a decision to affirm the delegate’s decision. The applicant now seeks judicial review of the Authority’s decision.
[1] This application date is taken from the Department’s letter dated 15 January 2016 acknowledging a valid SHEV application. There appears to be some variation as to the actual date of the application based on various documents in Exhibit A.
Background
The applicant arrived in Australia on the Cocos and Keeling Islands by boat and without a visa on 28 September 2012.
By letter dated 14 November 2015, the Department of Immigration informed the applicant that the Minister had exercised his power under s.46A(2) of the Migration Act 1958 (Cth) to permit him to apply for a Safe Haven Enterprise (subclass 790) visa (SHEV), a type of protection visa.
On 21 December 2015, the applicant made an application for a SHEV.
The applicant’s claims for protection in support of his visa application were accurately summarised by the delegate as follows:
·He is a Tamil and Muslim from Sri Lanka.
·In June 2009 in the final stages of the war he became separated from his wife and child. He tried to obtain some information about their whereabouts but was unable to. On 20 August 2009 the police attended his home. He was taken by the police and handed over to the Sri Lankan army. He was told by police that people from his area wanted the police to look into his business to determine how he was able to make money. He was living in a Sinhalese area in Colombo and believes that as he was a Tamil with a successful business, there was some jealousy towards him by the Sinhalese people.
·He was interrogated by the army and questioned whether he had had any involvement with the LTTE, what he would transport between Jaffna and Colombo and the whereabouts of his wife and child. He was detained for one and a half months. He was released but warned by the army to remain in the area. He sustained injuries in his groin area and as it was left untreated the damage is now permanent.
·In December 2011 he received a letter requesting he report to the police headquarters in Colombo which coincided with an incident in Jaffna where Tamil students raised the Tamil flag. He did not attend the police headquarters and went into hiding, staying with friends in Colombo and Negombo. He learnt about a boat leaving for Australia and contacted his family to advise them he was leaving. He fled Sri Lanka on 24 July 2012.
·If he returns to Sri Lanka he fears he will be detained at the airport, taken away and put in jail or disappear. He fears he will suffer physical harm or even be killed. He fears harm by the Sri Lankan army and police.
·He fears he will be harmed as he did not attend the police station when requested and that it is the army who want to interrogate him. As a Tamil who resided in Jaffna he will be viewed with suspicion. He fears the police may make false charges that he is responsible for the disappearances of his wife and child.
·Since he left Sri Lanka the police have attended at his home looking for him and tried to coerce his mother to tell them his whereabouts. His mother later lodged a false complaint with the police that he had gone missing. His family were worried that they would be interrogated if the police believed they knew his whereabouts.
·He cannot receive protection from the Sri Lankan authorities as he fears them.
·He cannot reside in another part of Sri Lanka as he fears harm from the army and police. The police are looking for him. The authorities operate all over the country and he fears his information will have been shared through their agencies, therefore he faces a risk of harm wherever he resides.
At his protection visa interview the applicant made further claims in support of his application. He claimed that along with his wife and daughter, he was held at a camp in 2009. After approximately 25 days, he was released but his wife and daughter were not. The applicant believed this was because his wife’s identity card stated she was from Jaffna and the authorities believed she may have been associated with the Liberation Tigers of Tamil Eelam (LTTE). After the applicant’s release from the camp he was taken by boat to Mannar by the Sri Lankan Army (SLA). He has not seen his wife or daughter since.
In August 2009, the Police visited the applicant’s home in Colombo to question him about his truck. They took him to an army camp near the harbour where he was questioned about what he transported in his truck. The Police believed he was carrying boxes that had contained bombs and explosives and that the applicant had been assisting the LTTE. The applicant claims that he was detained at the camp for approximately six weeks when he was released after the intervention of his brother-in-law. The applicant attended hospital in October 2009 for injuries he sustained whilst detained at the camp.
The applicant told the delegate that he had never assisted the LTTE but his wife was from Jaffna so he may have been imputed with a political opinion, however he was not sure. After his release from the camp and treatment for his injuries, the applicant returned to live with his parents at their home in Colombo. He claimed that the Police and Criminal Investigation Division (CID) had been monitoring him and making enquiries about him with his friends. In December 2011, he received a letter from the Police requesting that he attend the Police headquarters in Colombo. This letter was given to the applicant’s mother.
On 10 January 2017, a delegate of the Minister made a decision to refuse to grant the applicant a SHEV. That decision was a “fast-track reviewable decision” within the meaning of s.473BB of the Act and so was referred to the Authority for review under pt.7AA of the Act.
Amongst other documents sent to the Authority there was a certificate dated 10 January 2017 issued under s.473GB of the Act[2]. That certificate applied to a document entitled “FOI Exempt Document Examination Report dated 14 November 2016”. The reason given for the issue of the certificate was the opinion that disclosure of the document to which it applied would be contrary to the public interest because it was an internal working document.
[2] Exhibit A, p.227.
On 14 February 2017 the applicant’s agent sent the Authority a submission as well as a letter from a Sri Lankan lawyer[3].
[3] Exhibit A, pp.498 – 503.
On 24 February 2017 the Authority made a decision to affirm the delegate’s decision.
Authority’s decision
The Authority first found that there were exceptional circumstances to justify considering the new information provided to it by the applicant’s agent, as well as an updated report from the Department of Foreign Affairs and Trade.
Next, after summarising the applicant’s claims, it made the following findings of fact:
a)the applicant was a Muslim Tamil citizen of Sri Lanka whose home was in Colombo but who had worked buying and selling fish between Colombo and Jaffna: [9];
b)the applicant’s wife was from Jaffna: [9];
c)the applicant’s wife and daughter were held in a camp for longer than the applicant and have gone missing; however, the applicant’s wife is not a person of adverse interest to the authorities and the applicant was not a person of interest on account of her profile: [17];
d)the applicant was detained for 25 days in June 2009 and for a further 6 weeks from August 2009; he was interrogated and physically harmed but he was not monitored after that and did not go into hiding. He was not a person of interest after his release: [27];
e)the applicant did not fear harm on account of his religion: [30];
f)the applicant is not suspected of any crime in relation to his wife and daughter: [45];
g)the applicant would not face any harm as a result of having applied for asylum in Australia: [47];
h)the applicant would be detained and questioned on return to Sri Lanka for having departed illegally but any consequence of that departure would not amount to serious or significant harm: [48] – [53]; and
i)the applicant does not face a real chance of serious harm or significant harm on return to Sri Lanka for any reason or on a cumulative basis: [56].
On the basis of those findings the Authority concluded that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.
Consideration
There are six grounds in the applicant’s amended application. He did not pursue grounds 1 and 2; but sought leave at the hearing to amend ground 6. It is convenient to deal with grounds 5 and 6 first and together.
Grounds 5 and 6: denial of procedural fairness – the report of the forensic examiner and the certificate under s.473GB
The first part of the factual context for these grounds appears in the following passage in the delegate’s decision[4]:
The applicant provided two original police letters from the Sri Lankan police dated 20 August 2009 and 6 December 2011. The letters were referred to the department’s document examination unit. On 14 November 2016 both letters were found to be fraudulent. This information was provided to the applicant in writing dated 22 November 2016 inviting him to comment. On 12 December 2016 a response was received by the applicant by email from his agent.
(References omitted)
[4] Exhibit A, p.470.
The delegate found that the letters were fraudulent but accepted that the applicant believed that they were genuine.
In his submissions to the Authority, the applicant’s agent expressly addressed the authenticity of the letters and the events to which they related. He also produced a letter from a lawyer stating that the lawyer had personally visited the relevant police station and verified the letters[5].
[5] Exhibit A, p.503.
On 10 January 2017 a certificate was issued under s.473GB in respect of the document examination report. Section 473GB relevantly provides:
...
(1) This section applies to a document or information if:
(a) the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
…
(3) If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b) may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
...
The Minister accepted that the reason for the issue of the certificate could not properly form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding and that, for that reason, the certificate was invalid. I do not necessarily share that view, given the sensitive nature of the methods used by document examiners to detect fraudulent documents. However, it is unnecessary for me to reach a concluded view about that and I will proceed on the basis of the Minister’s concession.
The Authority did not refer to the certificate in its reasons but it did rely on the examiner’s report, finding that the letters were not genuine: [21].
The applicant argues in these circumstances that the Authority fell into jurisdictional error by acting on an invalid certificate and by not informing him of the basis for the opinion formed by the document examiner that the letters were not authentic. At the hearing he also sought leave to argue that the Authority unreasonably failed to exercise its discretionary power under sub-s.473GB(3)(b).
I will deal with the question of leave first.
There are two reasons why leave to raise this argument is refused: first, because there was no explanation given for the very considerable delay in raising this ground; and secondly, there are insufficient merits in the ground. It is necessary only to explain the second of these reasons.
The argument based on the power under sub-s.473GB(3)(b) is likely to fail for two alternative reasons: first, on the basis that the certificate was invalid, no such power arose and so there was an evident and justifiable reason for the failure to exercise it. Secondly, it was in any event readily understandable why the Authority did not disclose any of the information in the document examiner’s report: first, as a general proposition, the Authority is not required to disclose any information that was before the delegate: s.473DA(2), and secondly, the applicant had already had an opportunity to address the opinion in the report and had produced, in response, evidence of his own seeking to establish the authenticity of the documents in question.
For those reasons, I refuse the applicant’s application to further amend his application to raise this ground.
The applicant’s remaining contentions must also be rejected. The examiner’s report and the certificate were not “new information” and the scheme of pt.7AA of the Act (including the exclusion of the general laws of the procedural fairness hearing rule[6]) meant both that the Authority had to have regard to the certificate and the report, and that it was not required to disclose either of them, or any information in them, to the applicant: see Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 at [89] – [99]. The applicant argued that BBS16 was wrongly decided however, as he properly conceded, it is a decision of a court higher in the appellate hierarchy than this Court and I am bound to apply it.
[6] Minister for Immigration & Border Protection v DZU16 (2018) 253 FCR 526 at [97] – [99].
For those reasons grounds 5 and 6 of the amended application are rejected.
Ground 3: failure to deal with claims
The applicant contends that the Authority failed to deal with two claims made by him: first, that he faced harm if he were to try to locate his wife and child; and secondly, that the Police would hinder any search for his family and so cause him harm.
The principles dealing with the Authority’s obligation to deal with a claim as part of its review function were summarised by the Full Court of the Federal Court in AYY17 v Minister for Immigration & Border Protection [2018] FCAFC 89 at [18]:
18It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
(Emphasis in original)
On his own submissions, the claims relied on by the applicant only arose because of the “necessary implication that anyone whose wife and child disappeared while at the Army camp wants a closure and would actively pursue that issue”. However, it is simply not the case that any such claims arose necessarily from the facts asserted (or from any other facts or evidence before the Authority). Rather, this is a construct added, too late in proceedings, by a lawyer looking to make a case that was never made and was never apparent before either the delegate or the Authority. On a proper application of the principles summarised above, this ground must be rejected.
Ground 4: misapplication of the test for “well-founded fear of persecution”
In this ground the applicant contends that the Authority erred by failing to consider the “objective element of the well-founded fear through the prism of a reasonable person” who had experienced the harm suffered by the applicant. Although Counsel for the applicant suggested otherwise in oral submissions, the ground relied entirely on a statement by Gaudron J in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 414 – 415. Indeed, the statement is expressly referred to in the particulars of the ground. Her Honour Justice Gaudron relevantly stated in Chan:
...
It is one thing to say that an applicant must have a well-founded fear of being persecuted at the time his application is considered. It is quite another thing to say, as was said by the Full Court of the Federal Court, that, in a case involving changed circumstances, the question whether such fear is well-founded is to be answered by reference to the situation prevailing when the application is considered. Of course, and I do not understand this to be excluded by the Federal Court’s formulation, a political situation can only be properly evaluated in the context of its supporting political structures. Those structures are not necessarily revealed by a consideration of current political activities and policies. And where, as here, the claim is to an extent based on political structures, something more is required than a mere evaluation of current political activities and policies. But even allowing for these considerations, I do not think it correct to say that the question whether a fear is well-founded is to be answered by reference to the situation at the time of the determination and in isolation from the past experiences of the applicant.
The definition of “refugee” looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression “once bitten, twice shy”, that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be “well-founded fear” at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant’s own past experiences.
If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by the knowledge of subsequent changes in the country of nationality. ...
The reasons of Gaudron J in this passage do not represent the majority views in Chan: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 658 [150] (Gummow J); SCAM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 964 at [26] – [27]. Gaudron J herself accepted that this much was correct in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [69], although she maintained that her view was correct: see also WAHK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 12 at [13]. The statement does not represent the law and, for that reason alone, this ground must be rejected.
Conclusion
The applicant has failed to establish any jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 November 2018
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