BML18 v Minister for Home Affairs

[2018] FCCA 2089

FEDERAL CIRCUIT COURT OF AUSTRALIA

BML18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2089

Catchwords:
MIGRATION – Application to quash decision – where new information sought to be introduced for consideration – where absence of exceptional circumstances justifying such consideration – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 473DD

Cases cited:

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA16

Applicant: BML18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 822 of 2018

Judgment of: Judge Egan

Hearing date: 1 August 2018

Date of Last Submission: 1 August 2018

Delivered at: Sydney

Delivered on: 1 August 2018

REPRESENTATION

Applicant: Self represented

Counsel for the Respondents: Mr Dennis

Solicitors for the Respondents: Minter Ellison Lawyers

THE COURT ORDERS ON A FINAL BASIS:

1. That the application be dismissed.

2. That the applicant pay the first respondent’s costs of the application, fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 822 of 2018

BML18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia as an unauthorised maritime arrival on 3 October 2012.  He was, at the time, a citizen of Sri Lanka.

2. The applicant was allowed by the first respondent to make a valid application for a safe haven enterprise visa (subclass 790) - SHEV.  He did so by letter dated 16 September 2016.  Subsequently, a delegate of the first respondent refused to grant the application for the subject visa, that decision having been made on 8 August 2017.

3. On 8 March 2018, the second respondent, Immigration Assessment Authority, affirmed the decision of the delegate not to grant the applicant the visa.

4. The decision of the Immigration Assessment Authority is found at pages 518-531 inclusive of the court book. In paragraphs 4-8 inclusive of the reasons of the second respondent, it was set out that the Authority had had regard to material provided to it by the secretary of the Department pursuant to section 473CB of the Migration Act 1958 (Cth) (“the Act”).

5. It was recorded that on 18 September 2017, the applicant’s representative provided submissions and a number of reports.  Those reports included the following:

   a)A report entitled “Committee Against Torture Fifth Periodic Report” dated November 2016 compiled by the UK Home Office.

   b)A report entitled “Sri Lanka:  Tamil Separatism.  Version 5” dated June 2017.

   c)A report entitled “Sri Lanka:  COI Compilation” (ACCORD) dated 31 December 2016.

   d)A report entitled “Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on His Mission to Sri Lanka” dated 22 December 2016.

6. It was recorded in the reasons that, pursuant to section 473DC of the Act, the member of the Authority was not required to accept new information unless, pursuant to section 473DD of the Act, it was considered that the new information was presented in circumstances such that it was demonstrated:

   a)that exceptional circumstances justified its consideration;

   b)the new information was not able to be provided, and could not have been provided, before the delegate’s decision was made; or

   c)the new information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims.

7. It was found in paragraph 7 of the reasons that, to the extent that the submissions provided on 18 September 2017 argued errors or omissions in the delegate’s decision, based on the information that was before the delegate, regard had been had to it.

8. It was also found that the articles “Sri Lanka:  COI Compilation (ACCORD)” dated 31 December 2016 and the “Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on His Mission to Sri Lanka” dated 22 December 2016 were before the delegate and that necessary and appropriate regard had been had to them.

9. It was commented in paragraph 8 of the reasons that the articles “Committee Against Torture Fifth Periodic Report” dated November 2016 prepared by the UK Home Office and the “Sri Lanka:  Tamil Separatism.  Version 5” report dated June 2017 both predated the delegate’s decision, and could have been provided before the decision was made.  It was found that the articles were of a general nature and did not contain credible personal information.

10. It was found that the new country information did not meet the requirements of section 473DD(b)(i) or (ii). The Authority was also not satisfied that there were exceptional circumstances to justify considering the information, and on those bases, the new information submitted was not considered.

11. I do not consider that the Authority has erred in the exercise of its discretion, or in performing its duty pursuant to the provisions of the Act in respect of the non-regard being had by it to the new information.

12. I have had regard to a recent decision of the Full Court of the Federal Court in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111, such decision having been handed down on 13 July 2018.

13. At paragraphs 13 and 14 of the joint judgment of McKerracher, Murphy and Davies JJ, the Court emphasised that the term “exceptional circumstances” was not a defined term for the purposes of section 473DD(a) of the Act, and that regard ought to be had to the decision of the High Court in Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16 where the plurality (Gageler, Keane and Nettle JJ, with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in section 473DD(a):

    Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement.  The word “exceptional”, in such a context, is not a term of art but an ordinary, familiar English adjective:

    To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

14. I am comforted, when holding that ground 1 is without merit, in having looked at the reasons of the Authority and assessed the reasons in the context of the quote in the case last referred to.  Hence the ground 1 claim is without merit and is dismissed.

15. The second ground is one whereby the applicant contended that the Authority had failed to understand the significance of the medical reports that were before the delegate and which had been provided to the Authority.  It was further contended that the Authority had failed to consider future harm the applicant would face, due to his allegedly worsening condition.

16. His general proposition falls into the category whereby it is contended that the Authority fell into error by placing too much weight on the inconsistencies that arose during the delegate’s interview, and having insufficient regard to the applicant’s medical evidence.  It is the case, however, that the Authority considered all of the applicant’s medical evidence and made findings that were open to it.  For example, paragraph 13 of the reasons of the Authority set out how the Authority had considered the applicant’s reports of his having had a history of collapsing, had abnormal blood results and had been educated about safe levels of drinking alcohol.  The medical evidence indicated that the applicant needed further investigation from a neurologist, a liver clinic and a psychologist.

17. The Authority found that it was not satisfied that the applicant had at any time had a medical condition that affected his memory or concentration during the SHEV interview.

18. It is not the function of this Court to carry out a merits review in relation to matters which constituted factual information received by the relevant Authority, but rather, it is the role of this court to determine whether there has been any jurisdictional error which has occurred on the face of the reasons.

19. The Authority referred to evidence placed before the delegate, and it made a reasoned assessment of the applicant’s medical condition and requirements based upon all of the information before it. It could not, therefore, be reasonably suggested that the Authority’s approach to its exercise of discretionary powers under part 7AA of the Act was unreasonable (see Plaintiff M174/2016 at [71]).

20. Additionally, it was clear that the Authority was not satisfied that the applicant had a medical condition that affected his memory or concentration during the SHEV interview.  It was prepared to accept other aspects of the factual information put before it, and the delegate,  and, in all the circumstances, appeared to adopt an even-handed approach in that regard.

21. I accept the submission on behalf of the first respondent that it was unnecessary for the Authority to consider whether the applicant would face harm for the reasons contended for by the applicant, and further on the basis that the Authority’s findings were dispositive (see court book page 526 at [29]).  Accordingly, the second ground is without merit and is dismissed.

22. The third ground of review is based upon the contention that the Authority failed to consider that the applicant was at risk if he was returned to Sri Lanka due to his familial connections to the LTTE and his own imputed political opinions.

23. In that regard, it is clear that the Authority did consider the veracity of the applicant’s claims that he was at risk due to his familial connections.  The Authority did not accept a central plank of the applicant’s contentions, namely that the applicant’s cousin was a major in the LTTE and that he had been killed in combat.  Accordingly, as the Authority has made a factual finding in that regard – one about which I am not entitled to consider on a merits review basis - it was unnecessary for the Authority to consider the claim any further.  The Authority did accept the applicant’s own evidence that no-one in his family served in the LTTE, a finding which can be found at paragraph 17 of the court book on page 523.  Again, it is impermissible for this Court to undertake a merits review in that regard.

24. As to the contention that the applicant had some “imputed political opinion” which ought to have led to a different finding, the Authority, at some length, set out the applicant’s past role within the LTTE, the Authority finding that the applicant would not be perceived as having had a significant role in the LTTE, or that  he otherwise would be perceived as being an active participant on behalf of LTTE, or against the Government in any post conflict Tamil separatism.  At page 525 of the court book, in paragraph 24 of the reasons, the Authority found that the applicant’s involvement with the LTTE was for a short period of time and one whereby he did not play any significant role.  The Authority also found that there was only a remote chance of any informant telling the Sri Lankan authorities or Government about the applicant’s involvement in any past LTTE context.  The Authority also found that there was no credible evidence before it to indicate that the applicant would be perceived to have had a significant role in the LTTE or perceived to be active in post conflict Tamil separatism such as to give rise to any real threat of serious harm.

25. At paragraph 25 of the reasons, the Authority found that the applicant could return to Sri Lanka and would not face a real chance of any harm by any of the Sri Lankan authorities.  It also found that there was no credible information to indicate that the applicant would be detained for any other reason.

26. It was satisfied that the applicant could return to Sri Lanka and would not face any real chance of any harm by the Sri Lankan authorities for that reason.

27. In paragraphs 26 to 29 inclusive of the reasons of the Authority, regard is recorded as having been had to relevant DFAT reports and country information, and the Authority found that on the basis of DFATs advice, the applicant would not suffer discriminatory conduct, but rather the general application of the law which applied to all Sri Lankans, should he return to Sri Lanka.  It was stated that a generally applicable law would not ordinarily constitute persecution.  There was no suggestion that any relevant Sri Lankan law would be selectively enforced, or otherwise applied, toward the applicant in a discriminatory manner should he return to Sri Lanka.

28. In all of the circumstances, the Authority considered that there were no reasons to find that the applicant met the requirements of a refugee pursuant to section 5H(1) of the Migration Act, nor that he met the requirements under section 36(2)(a) of the Act.

29. The Authority also considered the question of whether the applicant, if returned to Sri Lanka, would suffer a real risk of suffering significant harm.

30. At paragraph 34 of the reasons, the Authority considered that the applicant’s claims did not satisfy it that the applicant would face a real chance of serious harm if he returned to Sri Lanka for reasons of either his ethnicity, past involvement with the LTTE, or as a result of his having sought asylum in Australia.  It was stated that the “real risk” test in the complementary protection provisions imposed the same standard as the “real chance” test applicable to the assessment of “well-founded fear”.

31. The Authority accordingly refused the applicant’s application for a visa.  I am satisfied that the third ground of review put forward by the applicant has not been made out, and I dismiss that ground.

32. Accordingly, I find that there is no merit in any of the grounds of review put forward on behalf of the applicant.

33. I consider that costs should follow the event.  When one brings an application for review before this Court, if they lose the application for review, as is the case here, then there ought to be a costs consequence for having been unsuccessful in that application.  Mr Dennis has only asked for costs fixed in the amount of $5000, which amount is less than the scale of costs which would otherwise be entitled to be claimed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date:  22 August 2018