BHP17 v Minister for Immigration
[2018] FCCA 3003
•23 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHP17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3003 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka for various reasons – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority overlooked relevant material, failed to consider a particular social group claim, breached the rules of procedural fairness or failed to consider an element of the applicant’s claims considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.473CB, 473DA, 473DC, 473DD, 473DE, 473EA |
| Cases cited: AFK16 v Minister for Immigration [2016] FCCA 1826 AMA16 v Minister for Immigration [2017] FCCA 303 BCQ16 v Minister for Immigration [2018] FCA 365 Craig v South Australia (1995) 184 CLR 163 CMR16 v Minister for Immigration & Anor [2017] FCCA 1715 CVS16 v Minister for Immigration & Anor [2017] FCCA 249 CVS16 v Minister for Immigration [2018] FCA 951 DBE16 v Minister for Immigration [2017] FCCA 487 DBE16 v Minister for Immigration [2017] FCA 942 DGZ16 v Minister for Immigration [2018] FCAFC 12 DJO16 v Minister for Immigration [2017] FCCA 944 DZU16 v Minister for Immigration [2017] FCCA 851 Minister for Immigration v CRY16 [2017] FCAFC 169 Minister for Immigration v DZU16 [2018] FCAFC 32 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v SZIAI (2009) 111 ALD 15 Minister for Immigration v SZRKT (2013) 212 FCR 99 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 Paul v Minister for Immigration (2001) 113 FCR 396 |
| Applicant: | BHP17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 931 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Fisher of HWL Ebsworth |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 931 of 2017
| BHP17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATAION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 27 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, and the decision of the Authority on them, are set out in the Minister’s outline of submissions.
The applicant is a male citizen of Sri Lanka. The applicant arrived in Australia as an unauthorised maritime arrival on 21 October 2012. On 1 July 2016, he lodged a SHEV[1] application.[2] The applicant claimed to fear harm on the basis of his Tamil ethnicity, his political activities, his imputed pro-LTTE[3] political opinion including arising from his brother's LTTE involvement, and his status as a failed asylum-seeker.[4]
[1] Safe Haven Enterprise Visa
[2] Court Book (CB) 14
[3] Liberation Tigers of Tamil Eelam
[4] CB 52
A delegate of the Minister refused the applicant's visa application on 29 December 2016.[5] The delegate's decision was referred for review by the Authority on 9 January 2017.[6] On 3 January 2017, the applicant's representative emailed the delegate a written submission. The submission was provided to the Authority by the Minister’s Department as part of the referral.[7]
[5] CB 126
[6] CB 142; 292
[7] CB 266
On 27 February 2017, the Authority affirmed the delegate's decision.[8] The Authority exercised its discretion to obtain new information, being a report by DFAT[9] concerning the treatment of Sri Lankans of Tamil ethnicity and citizens who had departed Sri Lanka illegally and sought asylum abroad. The Authority was satisfied that there were exceptional circumstances for considering this information.[10]
[8] CB 308
[9] Department of Foreign Affairs and Trade
[10] at [3]
The Authority found the chance of the applicant suffering serious harm for reason of any imputed political opinion arising for his Tamil race, or any perceived LTTE links, to be remote.[11] The Authority did not accept that the applicant was ever a person of interest to either the Karuna or Pillayan run paramilitary groups of the TMVP,[12] in particular, that TMVP-Karuna, abducted him in May 2012, that TMVP-Pillayan suspected he had divulged sensitive information during his abduction or that they ever threatened him for this, or any other reason. Consequently, the Authority did not accept the applicant was in hiding from either of the paramilitary groups prior to his departure from Sri Lanka, or that TMVP-Pillayan confiscated his passport.[13] On the basis of inconsistencies in the applicant’s evidence and the Tribunal’s concerns regarding the applicant’s credibility, the Authority also rejected the applicant’s documentary evidence purporting to support his claim that he was threatened or of adverse interest to TMVP-Pillayan.[14]
[11] at [10]
[12] Tamil Makkal Viduthalai Pulikal
[13] at [14]
[14] at [15]-[16]
The Authority concluded[15] that there was no evidence to suggest either TMVP-Pillayan or TMVP-Karuna had any interest in targeting the applicant. It found that there was no real chance the applicant would face serious harm from TMVP-Pillayan or TMVP-Karuna, on account of any imputed anti-Sri Lankan government political opinion, or for any reason, should he return to Sri Lanka.
[15] at [18]
With respect to the applicant's support of the TNA,[16] the Authority found that given the party's current political power as a mainstream party, it was not satisfied that the applicant faced harm because of his TNA support.[17]
[16] Tamil National Alliance
[17] at [19]
The Authority considered the applicant's illegal departure claim, including in the context of the complementary protection criterion, and was not satisfied that there was any intention to inflict significant harm.[18]
[18] at [34]
The present proceedings
These proceedings began with a show cause application, filed on 28 March 2017. There are two particularised grounds in that application:
1. The IAA erred in law by not considering all the information on record available at the time of review before it.
Particulars
The applicant filed several documents and gave evidence before the Delegate in support of his claim. The IAA failed to consider all evidence on record and merely confirmed the delegate findings.
2. The IAA and the delegate failed to consider the correct social group to which I belong, being (i) ethnic Tamil, middle aged male (ii) Kidnapped by Karuna para military Group (iii) the applicant's brother having worked for LTTE (vi) worked for the Pillayan Group (vii) perceived to have links with para military groups (viii) failed asylum seeker who Illegally departed the country (ix) having family links to L TTE as my brother is a member of LTTE
Particulars
The IAA and the delegate failed to consider the correct social group (PSG) to which I belong, They have considered only some of the characteristics of the social group viz ethnic Tamil and, failed asylum seeker but have not considered others aspects like family having close links to LTTE, tortured for links with Pillayan para military Group by the Karuna Para military Group, Pilliyan Group now seeking to take revenge against me on the assumption I have given some information to Karuna para military group and the fact that Government of Sri Lanka is not able to protect people like me against the threats of well armed para military group of Karuna and Pillayan Group.
It is submitted that the harm that would occur to the this PSG (to which the visa applicant belongs) on their return to Sri Lanka was considered especially after having accepted that the applicant worked for Pillayan Group and was detained and tortured by Karuna group.
The applicant also relies upon a short affidavit, filed with his application. I received that affidavit as a submission. The applicant filed a further submission on 29 March 2018. The applicant raised additional grounds in those submissions. The first additional ground is that the Authority failed in two respects to afford natural justice to the applicant. The second is that the Authority failed to consider an integer of the applicant’s claims relating to his Hindu religion.
The only evidence I have before me is the court book, filed on 23 August 2017.
The applicant declined to make any oral submissions today when given the opportunity to do so. He relies upon his written submissions. It was apparent that the submissions have been prepared by somebody with some knowledge of legal issues in this jurisdiction. Although he signed the submissions, it was not apparent to me that the applicant had any real understanding of them.
The Minister likewise relies upon his written submissions. Those submissions, in my view, deal adequately with the grounds advanced by or on behalf of the applicant. I agree with those submissions.
Ground 1
The applicant's first ground alleges that the Authority erred by not considering all of the evidence before the delegate. This ground is unparticularised. The Authority in its reasons specifically referred to some items of documentary evidence that the applicant had submitted. It did not purport to exhaustively set out the evidence before it, however it was under no obligation to refer to every item of evidence before it.[19] No case of jurisdictional error is demonstrated by Ground 1.
[19] see, for example, Paul v Minister for Immigration (2001) 113 FCR 396 at [79] per Allsop J (as his Honour then was) and see s.473EA of the Migration Act 1958 (Cth)
Ground 2
The applicant's second ground alleges that the Authority failed to consider the applicant's correct particular social group. However, rather than articulating a valid particular social group, this ground merely recites aspects of the applicant's claims (including claims rejected by the Authority). This is not a case in which the Authority found the applicant's claims lacked a Convention nexus. Further, the Authority cumulatively considered those aspects of the applicant's claims that it did accept.[20]
[20] see [27]-[28]
Grounds identified in the applicant's written submission
As noted above, on 29 March 2018, the applicant filed and served a written outline of submissions raising three further grounds.
First, it is alleged that the Authority denied the applicant procedural fairness by reaching a particular factual finding different to that of the Minister's delegate.
Section 473DA(1) of the Migration Act provides that Division 3 of Part 7AA “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the … Authority”. This provision operates to exhaustively exclude the requirements of the common law procedural fairness hearing rule.[21]
[21] AFK16 v Minister for Immigration [2016] FCCA 1826 at [11]-[12] per Judge Cameron; AMA16 v Minister for Immigration [2017] FCCA 303 at [18]-[21] per Judge Riley; DBE16 v Minister for Immigration [2017] FCCA 487 at [63] per Judge Driver; DZU16 v Minister for Immigration [2017] FCCA 851 at [101] per Judge Driver; DJO16 v Minister for Immigration [2017] FCCA 944 at [33] per Judge Cameron; DBE16 v Minister for Immigration [2017] FCA 942 at [61]-[65] per Barker J
Section 473DC(3) does not impose an obligation on the Authority to put to a referred applicant the dispositive issues arising on the review. The Authority is entitled to affirm a decision under review for reasons different from those given by the Minister’s delegate without having to alert an applicant to those reasons in advance of its decision.[22] As the Federal Court held in DBE16 at [59]:
[t]he Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker.
[22] DGZ16 v Minister for Immigration [2018] FCAFC 12 at [69]; [72]
There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In DBE16, the Federal Court also concluded at [59] that:
there is force in the Minister’s submission that the principles in SZBEL v Minister for Immigration(2006) 228 CLR 152… do not apply to reviews under Pt 7AA of the Migration Act.
Further, in so far as the applicant's complaint is construed as being that the Authority acted in a legally unreasonably manner by failing to exercise or to consider the exercise of its power in s.473DC(3) of the Migration Act, no case of jurisdictional error is disclosed.
The issue of the unreasonable non-exercise of the power in s.473DC(3) has now been the subject of examination by the Full Federal Court in Minister for Immigration Protection v CRY16,[23] DGZ16 and Minister for Immigration v DZU16.[24]
[23] [2017] FCAFC 169
[24] [2018] FCAFC 32
In DGZ16, the Full Court considered a factual scenario in which the delegate of the Minister made findings of fact that wholly undermined the referred applicant's central factual claims. The Authority made different factual findings, including accepting a key factual matter rejected by the delegate. The Full Court distinguished CRY16, holding that it was open to the Authority to evaluate for itself the material considered by the delegate[25] and arrive at different factual findings, without notifying the referred applicant that it was considering taking a different view adverse to the applicant.[26] Their Honours rejected at [74]-[76], and [78], that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant's case, and to provide the appellant with an opportunity to respond.
[25] at [71]-[72]
[26] at [72]
The decisions of CRY16 and DZU16 are authority for the proposition that there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s.473DC(3). This case is not one of those circumstances; it is clearly distinguishable. Critical to the outcome in CRY16, as is apparent from [82] of the Full Court's reasons, is that:
the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate.
In addition, DZU16 is distinguishable factually. In that case, an issue had arisen on the review, being whether relocation was reasonable, of which it was found that the referred applicant was not aware during the visa application process. The Authority issued to the applicant an invitation to comment on new information (namely, country information) purportedly pursuant to s.473DE(1), notwithstanding that it was not required to do so by reason of s.473DE(3)(a). The Authority not only made an error in setting the time for a response, but it was also in possession of information that suggested, among other things, that the referred applicant was illiterate and required a considerable amount of time to respond to the invitation to comment. It was in those circumstances that the Authority's failure to consider whether to exercise the discretion in s.473DC(3) was held to be legally unreasonable. That, however, is not the present case.
In the present case, assuming that the Authority did not consider the exercise of the power in s.473DC(1) and/or (3) in the manner now suggested by the applicant, such non-consideration was entirely explicable: there was no need for new information including at any interview. The Authority had sufficient material before it, based on the applicant's own claims and evidence, to assess his factual claims. The Authority was under no obligation to alert the applicant where it proposed to depart from findings of fact made by the delegate. On an outcome-focused view of the matter, the Authority's non-consideration and non-exercise of the discretion fell within the area of decisional freedom and did not lack an evident and intelligible justification.
The applicant's written submissions secondly contend that the Authority failed to invite the applicant's comment with respect to whether the applicant or his relatives had the means to provide a financial guarantee, to enable the applicant's release on bail.[27]
[27] applicant's submissions at [10]
The same principles as discussed above apply with respect to both procedural unfairness and legal unreasonableness. Further, the Authority's findings at [25] and [33] do not turn on or otherwise necessitate the applicant or a family member providing a financial surety to enable his release on bail. This is a further reason why the authorities of DZU16 and CRY16 are distinguishable; the ability of any person to provide a financial surety was not dispositive of the Authority's conclusion with respect to the applicant's claim concerning his illegal departure from Sri Lanka.
Thirdly, the applicant's submissions allege that the Authority failed to consider an integer of the applicant's claims. Specifically, it is alleged that the Authority failed to consider the applicant's claim to fear harm for reason of his Hindu religion.
Such a claim was never made by the applicant, and nor did it emerge, clearly or at all, on the material before the Authority.[28] Further, and contrary to any suggestion in the applicant's submissions, the Authority was under no duty to inquire more broadly. Pursuant to s.473DC(2), the Authority “does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”.[29] Further and in any event, no duty to inquire arose on the facts of this case by reference to the principles stated in Minister for Immigration v SZIAI.[30]
[28] see NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [68]
[29] and see CMR16 v Minister for Immigration & Anor [2017] FCCA 1715 at [13]
[30] (2009) 111 ALD 15
The Minister has also pointed out a further issue, namely that, after the delegate's decision, the applicant's representative provided the Minister’s Department with a document addressing the applicant's claims, issues raised by the delegate at the interview, and country information. That document formed part of the referral provided to the Authority by the Secretary of the Minister’s Department (and see, s.473CB(1)(c)). Arguably, this material was potentially “new information” as defined by s.473DC(1)(a) of the Migration Act, because it was a document that was not before the delegate, when the decision was made. The Authority did not expressly refer to the document, nor whether it was (in and of itself) or contained new information.
For the reasons that follow, no error arises from that. Specifically, I find that the document was not overlooked and, if it was, the Authority's having overlooked it does not amount to jurisdictional error and/or ought not to result in the grant of constitutional writ relief.
First, the applicant bears the onus of demonstrating that the document was overlooked.[31] The Authority may have formed the view that the document did not comprise of “new information” as defined by s.473DC(1), specifically, for reason that it was not information the Authority “considers may be relevant”.[32] This then had the consequence that the Authority had no power to consider the document under s.473DD. The Authority is under no obligation to give reasons for deciding whether or not certain information comprises new information.[33] Section 473EA(1)(b) does not require the Authority “to describe or state the procedural steps taken by it in reviewing the [delegate's] decision”.[34]
[31] Minister for Immigration v SZGUR (2011) 241 CLR 594, at 616 [67]-[68] per Gummow J
[32] Section 473DC(1)(b)
[33] BCQ16 v Minister for Immigration [2018] FCA 365 at 45; CVS16 v Minister for Immigration [2018] FCA 951 at [29]-[30]
[34] SZGUR at 616 [69] per Gummow J
I infer from the absence of any express reference in the Authority's reasons to the document that the Authority considered it not to be relevant. That is because of the nature and content of the document as summarised above. Specifically, the document advanced argument as to factual conclusions it was asserted the delegate should reach including by reference to country information,[35] addressed the applicant's disclosure of a particular aspect of his claims for the first time at the delegate's interview and whether any adverse conclusion ought to be drawn by the delegate from this,[36] and addressed concerns that had been put to the applicant by the delegate at interview.[37]
[35] CB 269; 271-272; 274-290
[36] CB 270-271
[37] See, similarly, CVS16 v Minister for Immigration & Anor [2017] FCCA 249, at [38]; CB 272-273
Secondly and in the alternative, if the document contained wholly or in part of new information as defined, and it is assumed that the Authority did not ask itself the questions posed by ss.473DD(a) and (b), the result is not jurisdictional error. For reason of the nature and content of the document as described above, and in circumstances where the Authority did not mention it in its reasons, the Authority's error would not have affected the exercise of the Authority's decision-making powers.[38] The application of the principles espoused in authorities such as Minister for Immigration v SZRKT[39] leads to the conclusion that the submission was not corroborative, and did not play an important part in the Authority's assessment of the applicant’s claims for protection.
[38] see, for example, Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ
[39] (2013) 212 FCR 99
I conclude that the applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative-clause decision, and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant enquired about time to pay, but did not oppose a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,206.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 25 October 2018
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