BNV18 v Minister for Home Affairs - [2018] FCCA 2061

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNV18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2061

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 473DB, 473DC, 473DD

Cases cited:

DGZ16 v Minister for Immigration [2018] FCAFC 12

Minister for Immigration v CQW17 [2018] FCAFC 110

Minister for Immigration v CRY16 [2017] FCAFC 210

Minister for Immigration v DZU16 [2018] FCAFC 32

Minister for Immigration v SCAR (2003) 128 FCR 553

Minister for Immigration v SZNVW (2010) 183 FCR 575

Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16

SZOVP v Minister for Immigration [2012] FCA 244

First Applicant:

BNV18

Second Applicant:

BOG18

Third Applicant:

BOH18

Fourth Applicant:

BOI18

Fifth Applicant:

BOJ18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 836 of 2018

Judgment of:

Judge Driver

Hearing date:

27 July 2018

Delivered at:

Sydney

Delivered on:

27 July 2018

REPRESENTATION

The First and Fifth Applicants appeared in person

Solicitors for the Respondents:

Ms K Hooper of Minter Ellison

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
Applicant BNV18 and applicant BOJ18 are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 836 of 2018

BNV18

First Applicant

BOG18

Second Applicant

BOH18

Third Applicant

BOI18

Fourth Applicant

BOJ18

Fifth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 6 March 2018. The Authority affirmed a decision of a delegate of the Minister (Minister) not to grant the applicants’ protection visas. The background facts relating to this matter are set out in the Minister’s legal submissions filed on 20 July 2018.
The applicants are citizens of Sri Lanka, who arrived in Australia as Unauthorised Maritime Arrivals. The first (applicant husband) and fourth named applicants arrived in Australia on 13 December 2012[1] and the third and fifth (applicant wife) named applicants arrived in Australia on 9 June 2013.[2] The second named applicant was born in Australia.
[1] Court Book (CB) 273
[2] CB 294
The Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicants to make valid applications for a specified visa.[3] On 17 June 2017, the applicants lodged applications for Safe Haven Enterprise Visas (SHEV).[4] The applicant husband and applicant wife claimed to fear harm in Sri Lanka due to their Tamil ethnicity, their imputed pro‑Liberation Tigers of Tamil Eelam (LTTE) political opinion, their illegal departure from Sri Lanka and their status as failed asylum seekers.
[3] see CB 39; 273; 294
[4] CB 50
On 29 August 2017, in two decisions, a delegate of the Minister refused to grant the applicants SHEVs.[5]
[5] CB 273; 294
The delegate's decisions were referred to the Authority for review on 1 September 2017. On 19 September 2017, the applicants provided the Authority with written submissions,[6] and an arrest warrant.[7]
[6] CB 326
[7] CB 328
On 6 March 2018, the Authority affirmed the delegate's decisions.[8] The Authority found there was not a real chance that the applicants would face harm because of any association with the LTTE, because of their Tamil ethnicity, their links to the Eastern province or their having sought asylum, or any accumulation of those factors. For the same reasons it had identified in relation to the criterion in s.36(2)(a), the Authority was also not satisfied that there was a real risk the applicants would face significant harm and the applicants did not meet s.36(2)(aa).[9]
[8] CB 335
[9] at [41]; [43]

The present proceedings

These proceedings began with a show cause application filed on 27 March 2018. The applicants now rely upon an amended application filed on 22 June 2018. There are 14 grounds in that amended application:
My wife and I are the Applicants along with my family unit. We are self-represented at this stage. We have not retained a lawyer and barrister to represent us in this court yet. We propose to seek further legal advices once we have listened to our protection visa interview CDs, and transcript of all interviews.
1. IAA erred in not being satisfied the applicants will be at risk of serious harm now or in the reasonably foreseeable future if returned to Sri Lanka
2.IAA erred in finding the Applicants do not meet S 5H(1) or S 36(2)(a) of the Migration Act
3.IAA erred in not being satisfied there is a real chance the applicants would face harm on return to SL as a failed asylum seekers, now or in the reasonably foreseeable future, or that we face a real chance of persecution now or in the reasonably foreseeable future,
4.IAA erred in finding the Applicants do not have a well-founded fear of persecution within the meaning of S 5J;
5.IAA erred in finding there is not a real chance of harm to the applicants now or in the reasonably foreseeable future, for any LTTE links, for any imputed political opinion, as an ethnic Tamil from Sri Lanka, as a returned Tamil asylum seekers or a combination of these if returned to Sri Lanka
6.IAA erred in finding the Applicants do not meet S 36(2)(aa) of the Migration Act
7.IAA erred in affirming the Delegate's decision not to grant the applicants a protection visa
8.IAA erred in not granting the applicants a protection visa,
9.IAA erred in declining to consider the arrest warrant being new information on the basis that ‘the applicant had not satisfied’ IAA ‘as to either of the matters in S 473DD(b)’ [paragraph 6] when IAA had not actually considered S 473DD(b)(i), nor had considered S 473DD(a), and accordingly the decision declining to consider the arrest warrant was not based on a proper consideration of the relevant law;
10.Applicant 2 was denied natural justice in the SHEV interview since she was ill and unable to participate in the interview fully, but the Delegate continued with the interview against her wishes knowing she was not in good health; the IAA erred in accepting the evidence of the Applicant although it was incomplete and commented adversely about omissions when the IAA should have invited the Applicant 2 to the hearing to comment upon such omissions/evidence.
Particulars.
Failure to comment upon matters referred to in paragraph 17, 18, 20,
11.IAA erred in not understanding the evidence given by the Applicant 2 that the Applicant 2 was assaulted and raped on three separate occasions, the IAA conflating the evidence and incorrectly concluding that the Applicant 2 was not raped and the allegations were fabricated to enhance her claim for protection. [paragraph 23]
12.IAA erred when it stated the Applicant 2 stated ‘In her SHEV application she states that she was at home with her mother in early 2013 and the army officers came and raped her, ..’, when the application does not mention 2013, and so the IAA acted upon incorrect evidence;
13.IAA erred when it stated the Applicant 1 ‘does not explain ... whether he returned to Trincomalee’ when he did so explain in the interview [paragraph 19];
14.IAA may have erred when it stated the Applicant 1
1.‘was unable to explain the charges and court proceedings in any detail’ [paragraph 21] when he did so explain;
2.‘made a new claim that he attempted to flee Sri Lanka in September 2012’ when he did not so claim it was in September [paragraph 21];
3.‘has not explained where he hid in Batticoloa or for how long’ when he did so explain [paragraph 19];
Such errors amounting to errors in law.
The application is supported by an affidavit filed with the original application, which I received.
I also have before me as evidence the court book filed on 4 May 2018.
It was apparent when I came on the bench today that an issue might arise from Ground 9 in the amended application. Ground 9 alleges that the Authority erred in its application of s.473DD to an arrest warrant.
I raised with the solicitor for the Minister the very recent decision of the Full Federal Court in Minister for Immigration v CQW17.[10] In particular, this case has some similarities with the case concerning what the Full Court describes as “new religious information” from [56].
[10] [2018] FCAFC 110
The Authority dealt with the proffered new information in this case at [6] of its reasons:[11]
Attached to the applicants’ submission is a copy of a warrant of arrest. I consider this document to be new information. This warrant is dated 5 February 2013, several years before the delegate’s decision. I note that it is claimed that the warrant was held by the applicant’s brother in law in Sri Lanka who provided the applicant with a range of documents prior to the SHEV interview but not this document. The matter of the warrant was also discussed at the applicant’s SHEV interview but not provided. I have concerns about the reliability of this document. The name and the address on the warrant are different to the stated name and address of the first applicant. I have considered the possibility that the name on the warrant is a transliteration of the first applicant’s name but the spelling is quite different. The warrant states that the reason for issue is ‘failure to attend the court’. The warrant does not identify the offence that the court attendance is relevant to, and it was apparently issued after the applicant arrived in Australia. The applicant has not provided any documentation to support his claim that he was charged with an offence that required a court appearance. The applicant has not satisfied me as to either of the matters in s.473DD(b). I cannot consider this new information.
[11] CB 337
It is apparent that the Authority declined to receive the new information in reliance on both elements of s.473DD(b) of the Migration Act. The Authority did not consider whether there were exceptional circumstances for the purposes of s.473DD(a). As the Full Federal Court made clear in CQW17, the Authority does not fall into jurisdictional error simply by failing to consider subparagraph (a) when reliance is placed on subparagraph (b).
Section 473DD of the Migration Act imposes a statutory prohibition on the Authority considering new information. That prohibition applies unless there are exceptional circumstances that justify considering the new information and the new information meets one of the requirements of either s.473DD(b)(i) or (ii) of the Migration Act; ss.473DD(a) and (b) impose cumulative requirements.[12] .
[12] see M174 v Minister for Immigration [2018] HCA 16 at [29]-[31] (Gageler, Keane and Nettle JJ) and at [88] (Gordon J); BRA16 v Minister for Immigration [2018] FCA 127 at [26]; AQU17 v Minister for Immigration [2018] FCAFC 111 at [13]
The Authority's reasoning above at [6] discloses that it engaged in substance with both ss.473DD(b)(i) and (ii) and that the applicant husband had not satisfied it of either matter, as required.
However, as the Full Court also made clear at [71]-[72] of its judgment in CQW17, there may be circumstances in which exceptional circumstances bear upon the consideration of subparagraph (b)(i) or (b)(ii). In the present case there were no exceptional circumstances for the Authority to consider. The arrest warrant was proffered to the Authority without comment. The warrant had been referred to at the interview with the Minister’s delegate but not provided at that time.
The Authority considered that circumstance. The Authority also took into account its difficulties with the document on its face. I perceive in this case no arguable case of jurisdictional error by the Authority in the manner in which it approached the question of the new information. Thus, no arguable case of jurisdictional error is disclosed by Ground 9.
In their oral submissions, the applicants drew attention to their Ground 10. The applicants contend that the applicant wife was unwell at the time of the interview with the delegate and unable to participate effectively.
Ground 10 alleges that the applicant wife was denied natural justice at the departmental interview in relation to the visa application, because she was unwell, and the Authority therefore erred in accepting the applicant wife's evidence, and should have invited the applicant wife to a hearing to comment on omissions or evidence.
The applicants asserted orally today that the Authority should have offered them a fresh interview as a consequence of the applicant wife’s illness. A number of things may be said about that contention. First, as detailed below, I accept from the email reproduced at CB 260 that the Minister’s Department was put on notice of an asserted illness being suffered by the applicant wife. Nevertheless, the applicant wife attended the interview and in a post hearing submission from the applicants’ agent, it was said that she participated in the interview.
By way of relevant factual background, by email dated 6 August 2017, the applicants' representative wrote to the Minister’s Department stating, among other things, that the applicant wife:[13]
[13] CB 260
has severe fever and she is unable to attend the interview scheduled for tomorrow.
The applicant husband] will attend the interview as requested and [the applicant wife] needs her interview to be rescheduled.
Despite this correspondence, both the applicant husband and wife attended interviews on 7 August 2017.[14] The applicants' representative provided written submissions by email, following those interviews.[15] Those written submissions made no reference to the applicant wife's capacity to participate in her interview.
[14] see, for example, CB 295
[15] CB 266
In the applicants’ submission to the Authority,[16] the applicants did call for an interview before the Authority. They did not, however, in that submission assert any incapacity on the part of the applicant wife to participate in the Departmental interview. The Authority dealt with the issue of the interview at [5] of its reasons:[17]
The applicants also sought an interview with the [Authority]. However, given the nature of the fast track process and the volume of material already before the [Authority], including the first applicant’s arrival and protection interviews and the second applicant’s enhanced screening interview and protection interview, I consider that the applicants have had ample opportunity to make their claims in full and I do not consider that an interview is required in this case.
[16] reproduced at CB 327
[17] CB 337
In the absence of some evidence of medical incapacity or at least some assertion after the event of incapacity to participate in a Departmental interview, the Authority’s consideration of that question was, in my view, adequate.
Further, this ground of review suffers from a number of fundamental defects.
First, the applicants have not established, and there is no evidence before this Court demonstrating, ill-health of the applicant wife at the time of the delegate's interview such that she was unfit in the sense of unable to effectively participate in the interview.[18] As I have already noted above, subsequent to that interview, on 16 August 2017 the representative stated that the applicant wife “has given her evidence and explanation to the best of her knowledge and ability to the issues raised by you during the immigration interview”.[19] No issue was subsequently raised before the delegate, or the Authority, as to the applicant wife's fitness to participate in the interview.
[18] cf Minister for Immigration v SCAR (2003) 128 FCR 553; Minister for Immigration v SZNVW (2010) 183 FCR 575; see SZOVP v Minister for Immigration [2012] FCA 244 at [37]
[19] CB 266
Secondly, there was no error by the Authority in considering the applicant wife's evidence; it formed part of the review materials and the Authority was obliged to consider it.[20] No jurisdictional error by the Minister’s delegate is established but, even if it were, that would not deprive the Authority of jurisdiction to conduct the review.[21]
[20] section 473DB(1)
[21] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16
Thirdly, the Authority was not required to invite the applicant wife to an interview[22] and it has not been demonstrated that it unreasonably considered its exercise of power to do so.[23] Significantly, there were no new dispositive issues in relation to which the Authority lacked relevant information within the capacity of the applicants to provide.
[22] see section 473DC(2)
[23] cf, generally, Minister for Immigration v CRY16 [2017] FCAFC 210; Minister for Immigration v DZU16 [2018] FCAFC 32; see, DGZ16 v Minister for Immigration [2018] FCAFC 12
The Authority gave cogent and rational reasons for its exercise of discretion; it referred to the nature of its review, the volume of material already before it, and the opportunities afforded to the applicants to make their claims in full, at [5]. Contrary to the particulars to this ground of review, the Authority was not obliged to put to the applicant wife the matters referred to in its reasons at [17], [18] and [20], which it should in any event be noted amount to the Authority's subjective appraisals of the applicants' own claims and evidence.
I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.
Grounds 1 to 8 make bare assertions of error in the Authority's ultimate conclusions, including by reference to provisions of the Migration Act. They fail to identify any argument of jurisdictional error by the Authority.
Ground 11 alleges that the Authority erred in not understanding the evidence given by the applicant wife that she was assaulted and raped on three occasions. This ground of review is directly contradicted by the statement in support of the applicant wife's visa application which refers to one claimed rape.[24] There is no evidence that the applicant wife claimed that she was raped on more than one occasion. Properly understood, Ground 11 appears to be directed to advancing a new explanation for the concerns the Authority identified at [23]. No reasonably arguable case of jurisdictional error is disclosed by this ground of review.
[24] CB 190
Ground 12 alleges that the Authority erred when it stated that the applicant wife claimed in her visa application that she was at home with her mother in early 2013 when she was raped, when in fact the application does not mention 2013.
The Authority did not accept that the applicant wife had been raped, as claimed, at [24]. In so finding, the Authority reasoned, at [23]:
The applicants claim that the SLA maintained an interest in the applicant [husband] after he left the country. The [applicant husband] states that after he left the SLA came looking for him and mistreated and raped his wife. The [applicant wife] states that the SLA came searching for him after he left the country, she was at home with her mother. They sexually abused and raped her. She decided that if she stayed any longer this could happen again and decided to leave the country with her daughter. In the SHEV interview the [applicant wife] claims that the SLA sexual abused and raped her in December 2012. She has given varying accounts of this claim. In the enhanced screening interview shortly after her arrival to Australia she was interviewed by a woman and did not mention this claim. In her arrival interview, again conducted by a woman, she does not mention this claim. In her SHEV application she states that she was at home with her mother in early 2013 and the army officers came and raped her, however, the evidence is that her mother had gone to Australia with her husband in 2012. In the SHEV interview she stated that 20 days after husband left she was raped by three army personnel at her brother in law’s house and that no one else was at home. She did not report the rape or seek any medical attention. She also stated that her daughter was about 1 month old when in fact she would have been 3 months old and she states that the army had been questioning her about her husband from November 2012 until she left in May 2013. I do not accept that the applicant [wife] was raped by army personnel. I consider that this claim was fabricated to enhance the [applicant wife's] claim for protection. I also consider that if the applicant [wife] was afraid of further abuse by the SLA she would not have waited over five months to leave the country. I prefer the [applicant wife's] claim that she could not travel to Australia with her husband, son and mother as she had a two month old daughter and she left later with other family members in May 2013 when her daughter was over eight months old.

The delegate discussed this aspect of the applicant wife's claims and evidence at CB 299. Specifically, the delegate identified the applicant wife's contradictory oral and written evidence as to this aspect of her claims, observing on the basis of this evidence that “the dates of the alleged sexual assault differ ranging between October 2012, November 2012, and May 2013.”
Whilst the applicants are correct in their assertion that the applicant wife's visa application did not expressly state that the alleged rape occurred in early 2013, the statement accompanying the visa application claimed that it occurred after the applicant husband departed Sri Lanka.[25] Based on the applicants' claims and evidence, the alleged rape occurred after the applicant husband departed Sri Lanka, which was on 25 November 2012,[26] and the applicant wife's departure on 26 May 2013. Accordingly, it was open to the Authority to infer that the rape was claimed to have occurred in 2013.
[25] CB 190
[26] CB 276
Further and in any event, it was open to the Authority to find that the husband and wife applicants gave “varying accounts of this claim” at various stages of the process, and that the statement made by the applicant wife in her visa application, that she was at home with her mother when she was raped after her husband departed, directly contradicted the claim that her mother departed Sri Lanka with the applicant husband.[27] Accordingly, the Authority's reasoning was open to it in the circumstances and was not predicated on any factual error; at its highest, the Authority made an incorrect factual assumption that was not material to its the reasoning.
[27] at [23]
Ground 13 alleges that the Authority erred at [19] when it stated that the applicant husband did not explain whether he returned to Trincomalee. There is no evidence to support this contention. To the contrary, the applicant husband's statement accompanying his visa application supports the reasoning, as it states that he “stayed away from Trincomalee” after moving to Batticaloa.[28]
[28] CB 188[19]
Ground 14 alleges that the Authority may have erred in relation to certain identified factual matters. This ground fails to identify jurisdictional error by the Authority. The Authority's factual findings were open to it, on the evidence before it, and for the reasons given.
I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Authority.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicants queried terms for payment of the costs and indicated a wish to appeal.
I will order that Applicant BNV18 and Applicant BOJ18 are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 2 August 2018