BDT18 v Minister for Home Affairs
[2019] FCCA 1013
•15 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDT18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1013 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to properly consider new information – whether the Authority failed to properly assess the applicant’s risk profile – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.473DD |
| Cases cited: ARP18 v Minister for Home Affairs [2019] FCA 472 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 Plaintiff M174/2016 [2018] HCA 16 |
| Applicant: | BDT18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 637 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 8 April 2019 |
| Date of Last Submission: | 15 April 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 15 April 2019 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondents: | Ms Graycar |
| Solicitors for the Respondents: | Ms Given, HWL Ebsworth |
ORDERS
The application is dismissed.
The Applicant is to pay the costs of the First Respondent fixed in the amount of $9800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 637 of 2018
| BDT18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is a judgment in the matter of BDT18 v Minister for Home Affairs & Anor. This matter was adjourned from 8 April 2019, to allow the applicant time to consider the respondent’s submissions in order to ensure procedural fairness. Following the adjournment having been allowed, the applicant has told the Court that he does not wish to make any further submissions.
Introduction
The applicant is a Sri Lankan citizen of Tamil Catholic background. His brother joined the Liberation Tigers of Tamil Eelam (“LTTE”) in 1990 and died during combat in 1991. The applicant admits that in 1995, he joined the LTTE’s administration division and worked as a driver from 1995 until the end of the conflict in 2009. The applicant admits to wearing a uniform and to receiving a regular pay from the LTTE. The applicant was injured in the left leg by shrapnel from an artillery shell during his service with the LTTE. The applicant has a scar on that leg from the wound he sustained. The applicant’s duties with the LTTE consisted of driving a water truck and transporting troops, including dead and injured. The applicant denies any combat involvement or weapons training and claims that his only involvement was in a combat service support role as a driver.
At the end of the war, the applicant claims he was detained at Chettikulam Camp. While detained, the applicant was interrogated on several occasions by the Criminal Investigation Department (“CID”) of the Sri Lankan Police. The applicant was held at the camp from May 2009 until October 2009. The applicant was also questioned on a number of occasions and was kicked on one occasion during questioning.
Following the applicant’s release from Chettikulam Camp, he claims that in 2012, CID officers and army personnel came to his house, forcibly removed him and detained him for three days at the Joseph Army Camp. The applicant was interrogated on several occasions and again, on one occasion, kicked in the chest by an officer.
Following the applicant’s release, he claims he was required by authorities to continue to report until he fled Sri Lanka in 2012. The applicant claims that after he left Sri Lanka, his wife told him that CID officers came to his home in search of him.
On 3 March 2017, the applicant lodged an application for a Class XE Subclass 790 Safe Haven Enterprise visa.
A delegate of the Minister for Home Affairs refused that visa on 8 June 2017.
The applicant applied to the Immigration Assessment Authority (“the Authority”) for a review of the delegate’s decision.
On 5 July 2017 and 21 October 2017, the Authority received materials and submissions on behalf of the applicant, which included some new claims that were not before the delegate.
On 21 February 2018, the Authority affirmed the decision not to grant the applicant a Safe Haven Enterprise visa. The applicant now applies to this Court for judicial review alleging error by the Authority in their decision.
Documents before the Court
The Court has been provided with a Court book and it is marked exhibit 1. Most relevantly, the Court has been provided with the decision of the Authority of 21 February 2018, the grounds of appeal relied upon by the applicant and the first respondent’s submissions. I note that the applicant has not provided any submissions for consideration by the Court today.
The Immigration Assessment Authority Decision
The Authority’s decision runs for some 20 typed pages, including three pages of extracts of applicable law. The Authority’s decision contains significant discussion on the background of the applicant, which I have outlined above.
At paragraph 11 of the decision, the Authority notes that they received additional information on 23 October 17, that being a document from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”). This document sets out some new claims, which are detailed in paragraph 12 of the Authority’s decision.
The STARTTS document postdates the delegate’s decision and could not have been provided prior to the delegate’s decision. To that extent, the document satisfies the provisions of s 473DD(b)(i) of the Migration Act 1958 (Cth) (“the Act”). However, the Authority concluded that there was no exceptional circumstances to justify considering the document.
The Authority accepted a person may feel more comfortable in disclosing sensitive information in a counselling environment, however the information disclosed in the STARTTS document was not of a sensitive nature (see paragraph 13 of the Authority’s decision). The Authority concluded there were no circumstances constituting “exceptional circumstances” to justify the consideration of the new claims contained within the STARTTS document.
The Authority was satisfied as to the applicant’s identity, that the applicant is a Tamil Christian and a Sri Lankan national. The Authority noted that the applicant fears harm because he was a member of the LTTE and his brother was an LTTE martyr.
At paragraph 26, the Authority accepts that the applicant worked as a driver for the LTTE. At paragraph 29, the Authority finds that if the applicant was of interest to Sri Lankan authorities in 2009, the applicant would have been sent to a rehabilitation camp rather than simply being released.
At paragraphs 30 to 31 of the decision, the Authority accepts that the applicant was again detained in 2010 for three days, questioned and kicked on one occasion before being released, but did not find that the applicant’s evidence was consistent in regards to reporting requirements following his release. The Authority did not accept, given that the applicant was not an LTTE cadre or in a leadership position, that the Sri Lankan authorities would have required him to report to them for two years until 2012 when he departed Sri Lanka.
The Authority did not consider it was plausible that the applicant had been subjected to harassment and questioning as he described and concluded the applicant did not leave Sri Lanka for that reason. At paragraph 33, the Authority did not accept that Sri Lankan authorities regularly visited the applicant’s home following his departure.
At paragraph 35, the Authority noted various country information that was available. In particular the Authority noted the UK Home Office information which stated that generally a person who evidences past membership or connection to the LTTE would not of itself warrant international protection unless they are perceived to be active in post-conflict Tamil separation activities or were on a “stop list” at the airport. The Authority concluded that the applicant would not be a person of interest to the authorities if he returned to Sri Lanka.
The Authority noted the improved situation in Sri Lanka, following the election of the Siresena government in 2015. At paragraph 38, the Authority concluded that should the applicant be returned to Sri Lanka, the applicant did not face a real chance of harm currently or in the future due to his Tamil ethnicity, for originating from a former LTTE area or for his involvement with the LTTE.
In paragraphs 40 to 48, the Authority discussed the fact that the applicant would be arrested upon his return to Sri Lanka on the basis that he had left Sri Lanka illegally. The Authority noted that the applicant would remain in police custody for up to 24 hours and if he was unable to be brought before a Court quickly, the applicant could be transferred to a prison. The Authority noted that Sri Lankan prisons do not meet international standards due to a lack of resources, overcrowding and poor sanitary conditions. The Authority found however, that a few days in detention “would not constitute serious harm to the applicant.”
The Authority also found that the treatment of those who left Sri Lanka illegally did not amount to systemic and discriminatory conduct. The Authority was not satisfied that there was a real chance of persecution or that the applicant would suffer serious harm as a result.
At paragraphs 52 to 56 of the decision, the Authority considered the applicant’s complementary protection considerations and found that they did not meet the requirements of significant harm, notwithstanding the applicant would be detained and could be imprisoned for a few days upon his return.
Grounds of Appeal
There are three grounds in the application.
Firstly, the applicant claims that the Authority fell into error by failing to consider the new information that was put forward by the applicant and did not apply s 473DD(b) of the Act correctly.
Secondly, the applicant claims that the Authority fell into error when it refused to consider the STARTTS document.
Thirdly, the applicant claims that the Authority failed to consider that the applicant met the risk profiles found in the Department of Foreign Affairs and Trade (“DFAT”) report and thus faces a real chance of harm if he is returned to Sri Lanka.
The operation of s 473DD of the Act was considered in Minister for Immigration and Border Protection v BBS16[1] and also in ARP18 v Minister for Home Affairs.[2]
[1] [2017] FCAFC 176 at 106.
[2] [2019] FCA 472.
In BBS16, it was found that:
…by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not known to the Minister.
Subsequently in Plaintiff M174/2016,[3] the High Court set out three preconditions for the consideration of new information. At paragraph 34 of the decision, the High Court found the conditions were:
The information is credible information about an identified individual, the information was not previously known by either the Minister or the refused applicant, and had the information been known by the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.
[3] [2018] HCA 16 at 34 per Gageler, Keane and Nettle JJ.
In the present case, the Authority considered the new information in paragraphs 4 to 13 of the decision. The Authority did not find that there were any exceptional circumstances to justify the consideration of this new information.
I am not satisfied, taking account of the requirements set out by the High Court in Plaintiff M174/2016, that there was a requirement to consider the new information that the applicant had provided. The information was clearly known to the applicant when he arrived in Australia. The suggestion that the applicant’s family may suffer harm in travelling to Colombo to obtain his release from prison is at best a speculative assertion and is not backed by any evidence.
I am not satisfied that this “new material” would have affected the consideration of the claim by the Authority. Accordingly, ground one fails.
Ground two alleges an error of law was made by the Authority by refusing to consider the STARTTS document. The particulars allege a failure to consider a deterioration in the mental health of the applicant if he was required to be returned to Sri Lanka.
The Authority set out the information contained in the STARTTS document at paragraphs 11 to 13 of the decision. At first impression it fits the description of “new information” in that the document does not predate the original delegate’s decision.
However, a fair reading of the material contained within the STARTTS document indicates it is more in the nature of detail regarding the claims that have already been made by the applicant. The claims that the applicant may suffer a deterioration in his mental health are also not supported by any clinical diagnosis or material from an appropriate health professional. The Authority also noted some inconsistencies with previous information that had been provided.
I’m not satisfied that the material within the STARTTS document would have affected the consideration of the applicant’s claims, even if it had been admitted. This second ground consequently fails.
The third ground of the application alleges the Authority failed to consider if the applicant met the risk profile found in the DFAT report and thus faces a risk of real harm.
At paragraph 35 of the decision, the Authority considered the role played by the applicant as a driver in the LTTE and that the applicant did not have a leadership role and thus would be unlikely to be a person of adverse interest to authorities upon his return.
At paragraph 47, the Authority found that the applicant was not a person of adverse interest to Sri Lankan authorities when he left Sri Lanka and would not be of adverse interest upon his return other than for the fact that the applicant left Sri Lanka illegally.
The Authority specifically found that they were not satisfied that there was a real risk that the applicant would be subject to harm on this basis.
I am satisfied that the Authority did consider the risks based on the totality of the information, including the DFAT document, during the course of the decision as set out in the reasons for decision.
I am satisfied that the Authority did consider the applicant’s overall profile and found against him. The Authority considered the issue that the applicant had a scar on a wound, but did not consider that it would result in an adverse outcome upon his return (see paragraph 37 of the decision).
The result is that this ground reveals no jurisdictional error on the part of the Authority.
I am also satisfied that this ground of appeal actually invites impermissible merits review by this Court. This ground consequently fails.
That being the case, all three grounds have failed and I dismiss the application.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 18 April 2019
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