BOH16 v Minister for Immigration
[2016] FCCA 2649
•13 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOH16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2649 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Temporary Protection (subclass 785) visa – whether the Authority complied with the statutory obligations in Part 7AA – whether the Authority took into account the applicant’s claims regarding complementary protection – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DA, 473DC - 473 DF, 473GA, 473GB of pt.7AA. |
| Applicant: | BOH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1610 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 13 October 2016 |
| Date of Last Submission: | 13 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Mr D McLaren Minter Ellison Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1610 of 2016
| BOH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 10 June 2016 under Part 7AA of the Migration Act 1958 (Cth) (“the Act”) affirming a decision of the delegate not to grant the applicant a Temporary Protection (subclass 785) visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 10 September 2012 as an unauthorised maritime arrival. Prior to the applicant's arrival in Australia he visited Kuwait from December 2007 until March 2008 and Dubai from November to December 2010.
On arrival, the applicant was interviewed by an officer on 19 January 2013. The applicant lodged an application for a Protection (subclass 866) visa on 12 September 2013. That application was deemed to be invalid on 8 November 2013. The applicant was invited to lodge a further application for protection on 24 August 2015. The applicant applied for a temporary protection visa on 8 September 2015.
The Delegate’s Decision
On 12 May 2016 a delegate of the first respondent refused to grant the applicant a Temporary Protection (subclass 785) visa.
The delegate rejected most of the applicant's claims and also made adverse credibility findings based on the inconsistency and changes in the applicant's claims and evidence.
Refugee Criterion Assessment
The delegate was not satisfied there is a real chance of persecution of the applicant for one or more of the reasons mentioned in s.5J(1)(a) of the Act in the receiving country and was not satisfied the applicant was a refugee as defined in s.5H of the Act. The delegate was not satisfied the criteria under section 36(2)(a) of the Act were met.
The delegate found that the applicant was not a refugee, as defined in s.5H(1) of the Act. The delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a). The delegate was not satisfied that the applicant was a refugee, as defined by s.5H(1) of the Act.
Complementary Protection Criterion Assessment
The delegate was not satisfied there was substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka there is a real risk the applicant will suffer significant harm. The delegate found the applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act. The delegate found that the applicant was not an excluded fast-tracked applicant, as defined in s.5(1) of the Act.
The Authority’s Decision
By letter dated 13 May 2016, the Authority acknowledged referral of the applicant's application for review. That letter identified the material that had been provided to the Authority and that the Authority would proceed to make a decision on the basis of the information that had been provided, unless the Authority decided to consider new information.
The Authority identified that there were only limited circumstances in which it could consider new information. The letter included a Practice Direction. That Practice Direction expressly referred to the topic of submissions and new information and identified that any such submission should be provided within 21 days. The Practice Direction referred outlined that if there was proposed new information, the Authority would consider whether it met the requirements of s.473DD of the Act.
On 2 June 2016 the applicant sent an email seeking further time to provide submissions. On 3 June, the Authority provided a response, giving the applicant until 9 June to provide submissions. No submissions were provided to the Authority within that timeframe.
The applicant claimed to fear harm because of his political opinion. The applicant claimed that he had worked for a Tamil political party called the United National Party (“UNP”) and that between 2009 and 2010 he was arrested for being suspected of being involved in a fight and later released. The applicant also claimed that he received suspicious phone calls and that his friends were abducted on a number of occasions.
The applicant claimed he was pursued by a person to whom he owes a debt. The applicant claimed to fear harm from the Sri Lankan Government because of his ethnicity, being a Tamil. The applicant claimed he had been targeted and harassed and detained on suspicion of being antigovernment for almost 10 months in 2009 to 2010. The applicant claimed that white vans and government people continued to come to his house in Sri Lanka searching for him.
At the interview on 21 March 2016 the applicant conceded that some of his earlier claims were not true or incorrect. The applicant alleged that he had assisted the UNP in 2012 in an election campaign and that he was arrested and detained for 10 months in 2003 or 2004. The applicant also alleged he had been associated with the underworld in Sri Lanka and that he would be suspected of being involved in underworld activities as a result. The Authority identified that there was no new information and had regard to the material referred under s.473CB of the Act.
Refugee Assessment Criterion
The Authority identified the applicant's claims and evidence. The Authority did not accept that the applicant was subject to a level of discrimination as a Tamil so serious as to amount to persecution in relation to employment, language, basic services or his dealings with the police and other authorities.
In relation to the applicant's alleged detention in 2009, the Authority found there was no real chance that the applicant would be similarly detained now or in the reasonably foreseeable future. The Authority found the applicant had no connection with the Liberation Tigers of Tamil Eelam (“LTTE”) and was not imputed by the authorities to have any connection with the LTTE.
The Authority found there is no real chance the applicant would be harmed on return to Sri Lanka as a person with actual or imputed links to the LTTE, or for any reason, including his Tamil ethnicity. The Authority found that there is no real chance the applicant faces harm because of any work he has done for the UNP or the Sri Lanka Freedom Party (“SLFP”).
The Authority found even accepting that the applicant had been detained on three occasions, twice around 2004 and once in 2010, these were related to criminal matters and not for any other reason. The Authority found that the judicial process operated fairly and that there were no ongoing problems amounting to persecution of the applicant as a result. The Authority found there were no outstanding issues relating to those matters when the applicant went to Dubai in November 2010, and that there are none now.
The Authority referred to the inconsistencies in the applicant's evidence as to whether the applicant’s friends were abducted and killed and as to whether this was because of pro-Tamil, other political activity or because they were underworld figures, and how many had been affected. The Authority did not accept the applicant's friends disappeared in white vans and did not accept that the applicant is at risk of harm in similar circumstances.
The Authority did not accept the applicant had been involved in any political activity that resulted in him acquiring an adverse profile with the authorities. The Authority did not accept that the CID or any other government agents went to the applicant's house in white vans, either before or after his departure, with the intention of abducting or harming the applicant.
The Authority made reference to the applicant's claim in relation to fearing harm because he was unable to pay a debt. The Authority was not satisfied that there is a real chance that the applicant will be harmed because of his unpaid debts if the applicant returns to Sri Lanka. The Authority found that even if the applicant did owe money to a politician, the Authority does not consider this adds a political component to the feared harm and found that this was a purely commercial and personal matter.
The Authority considered the applicant's claims as a failed asylum seeker and as an illegal departee who had breached the Immigration and Emigration Act. The Authority found there is no real chance that the applicant would be subjected to any mistreatment that would amount to serious harm.
The Authority found that it is likely that on return the applicant will be charged under the Immigrants and Emigrants Act, then fined and released or, if the applicant pleads not guilty, he will be released on his own personal surety.
The Authority found that the procedures under which the applicant as a returnee would be dealt with, and any penalties to which the applicant may be subjected, will be applied on a non-discriminatory basis under a law of general application, and therefore, did not constitute persecution for the purpose of s.5H(1) and s.5J(1) of the Act.
The Authority was satisfied that asylum seekers are not imputed with any adverse profile and found the applicant had no relevant profile that would otherwise result in his being imputed to be a supporter of the LTTE or anti-government on return. The Authority was not satisfied the applicant faces harm of any kind on return as a failed asylum seeker. The Authority found that there is no real chance the applicant would now or in the reasonably foreseeable future be subjected to serious harm amounting to persecution as a failed Tamil asylum seeker who departed Sri Lanka illegally.
The Authority found the applicant did not meet the definition of refugee in s.5H(1) of the Act and that the applicant did not meet the criteria under s.36(2)(a) of the Act.
Complementary Protection Assessment
The Authority considered the applicant's claims in relation to complementary protection, setting out the definition of "significant harm" in s. 36(2A) of the Act. The Authority accepted the applicant may be detained at the airport and questioned on the subject of security and character checks. The Authority accepted that the applicant may be charged with an offence under the Immigrants and Emigrants Act because he departed Sri Lanka illegally.
The Authority found that the applicant may be remanded in custody for a short period, either at the airport or at a prison, while waiting to be brought before a magistrate who will most likely quickly grant bail.
The Authority did not accept that there are any particular aspects of the applicant's profile that would result in the applicant being detained for a longer period or subjected to interrogation that might give rise to significant harm. The Authority did not accept that the processes outlined amounted to significant harm, or that the applicant would be exposed to significant harm during that process.
The Authority did not accept that the penalty that was likely to be imposed on the applicant, or the remand conditions that he would most likely face amount to any form of significant harm. The Authority was not satisfied that there is a real risk that the applicant faces a custodial sentence. The Authority was not satisfied there is a real risk the applicant will face torture, cruel or inhumane treatment or punishment or degrading treatment or punishment, including as a result of conditions he may face during a short period in custody.
The Authority accepted that the conditions in prison are poor but, on the evidence, did not accept that the applicant faced death or the death penalty or arbitrary deprivation of life. The Authority made reference to the definition of "cruel or inhumane treatment or punishment" in s.5(1) of the Act, as well as the definition of "degrading treatment or punishment". The Authority was not satisfied that any pain or suffering caused to the applicant by overcrowding in poor and unsanitary conditions in prison or on remand would be intentionally inflicted. The Authority did not accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation.
The Authority was not satisfied that there is a real risk that the applicant faces future detention or imprisonment in relation to any earlier criminal offences. The Authority found that the harm resulting to the applicant from prison conditions was not significant harm, as defined.
The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka there is a real risk that the applicant will suffer significant harm.
Accordingly, the Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.
Proceedings Before this Court
At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant it was considering whether the Authority’s review was unlawful or unfair.
The Court explained to the applicant that if satisfied that the Authority’s decision was affected by relevant legal error, the decision would be set aside and sent back for further review. The Court explained that if not satisfied that the Authority’s decision was affected by relevant legal error, the application would be dismissed.
The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
On 18 August 2016, a Registrar of the Court made orders fixing the matter for hearing and provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.
The grounds of the application are as follows:-
When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me to comment on or respond to the adverse information in which it relied to refuse my application. The IAA must have invited me to appear before the IAA to give evidence and present arguments relating to the issues raised in relation to my referred application with the IAA. The IAA has failed to consider my claim for complementary protection pursuant to section 36(2) (aa) of the Migration Act 1958 (Cth) whether there was a real risk that I would suffer “significant harm” if l were to return to Sri Lanka by reason of the enactment of the Immigrants and Emigrants Act (the l&E Act). As defined in s 36(2A), “significant harm” ·includes “degrading treatment or punishment" which in tum, includes acts that cause, and are intended to cause, “extreme humiliation which is unreasonable.” I contend that the l&E Act causes, and was intended to cause, extreme and unreasonable humiliation in making it an offence punishable by imprisonment of 1-5 years and a fine to depart Sri Lanka otherwise than from an approved port of departure and/or without valid documents
On my arrival at the airport in Colombo, I would be questioned by the CID and I will be prosecuted for my illegal departure as a Tamil male. There is information before the IAA that there are potential risks of physical violence in prison.
I will have to suffer continually in detention until a relative and/or family bail me.
The IAA has not considered at all the complementary protection available to me in Australia.
From the bar table, the applicant submitted, that whilst he was in detention at the time of interview his mind was impaired and that he did not have a good state of mind. The applicant also made reference to requesting a copy of the CD relating to his interview which he says he did not receive.
Following submissions by the solicitor for the first respondent, the applicant said he could not return to Sri Lanka and that his life would be in danger.
Applicant’s request for an adjournment
The applicant then said that he wanted more time. The applicant was asked what he wanted more time for and the applicant indicated he wanted more time to obtain evidence and documents to provide to the Authority. The Court clarified with the applicant whether he was seeking an adjournment and the applicant confirmed that he wished to obtain an adjournment. No earlier notice of an adjournment had been given by the applicant to the first respondent. The adjournment was opposed by the first respondent.
The applicant said he needed more time to obtain the documents. The Court raised with the applicant that he had had since 24 June 2016 to obtain any evidence or documents if he was able to do so. The applicant provided no satisfactory explanation as to why granting an adjournment would provide the applicant with further evidence or documents. Further, as this is a matter under Part 7AA of the Act, in relation to the conduct of the review by the Authority, there is no basis to conclude that if any documents or evidence were obtained that they would meet the criteria of new information to which the Authority could have regard.
Nothing said by the applicant satisfactorily explained why the applicant would now be able to obtain documents and evidence, if an adjournment was granted. The Court is not satisfied that an adjournment was warranted in the interests of the administration of justice. Further, an adjournment would only unnecessarily add to the costs of the parties and utilise limited court time. It was for these reasons the adjournment was refused.
The applicant made further reference to obtaining the CD so he could identify his alleged contradictory claims to put submissions. The applicant said that it was due to worries about his children that he could not put his claims clearly earlier and that this was the reason why he had made some errors in his submissions.
I accept the submissions of the first respondent. Nothing said by the applicant from the bar table identified any jurisdictional error.
Consideration of the Grounds and Conclusion
In relation to Ground 1 in the application, the Authority’s procedural fairness obligations are stated in Division 3 of Part 7AA of the Act, along with s.473GA and s.473GB of the Act, and are taken to be an exhaustive statement of the requirements of the natural justice hearing rule under s.473DA of the Act. Subject to s.473DB of the Act, the review by the Authority under Part 7AA of the Act is to be conducted on the papers and does not involve the receipt of new information or require the Authority to invite the applicant to appear before the Authority to give evidence and present arguments.
The Authority in the present case had regard to the review material under s.473CB of the Act and did not in the present case obtain any new information under ss.473DC to 473DF of the Act. Further, the Authority does not have a duty to get, request or accept new information, s.473DC(2) of the Act.
I am satisfied on material before the Court in the present case that the Authority complied with its procedural fairness obligations and statutory obligations in Division 3 of Part 7AA of the Act in the conduct of its review.
I am satisfied that the Authority had regard to the review material and that no new information was obtained or received that may have enlivened any obligation to put new information to the applicant.
In these circumstances, the Authority was under no obligation to invite the applicant to comment on, or respond to adverse information, or to invite the applicant to a hearing before it pursuant to s.473DC of the Act. Ground 1 fails to make out any jurisdictional error.
In relation to Ground 2, it is apparent that the Authority did consider the applicant's claims in relation to complementary protection and did consider the issue of significant harm and in particular, the consequences of the applicant's illegal departure. The Authority took into account the statutory definitions relevant under the Act. The Authority made an express finding that the Immigrants and Emigrants Act was a law of general application and was not applied in a discriminatory manner. The Authority also made a finding that the conditions in the prison or on remand were not intentionally inflicted.
On the material before the Court, the Authority properly considered the applicant's claims in relation to complementary protection and made adverse findings that were open to it. The adverse findings cannot be said to lack an evident and intelligible justification. Ground 2 fails to make out any jurisdictional error.
In relation to Ground 3, it is apparent that the Authority took into account the prosecution that the applicant would face under the Immigrants and Emigrants Act and made findings that were open. Ground 3 is in substance, an invitation for this Court to engage in an impermissible merits review. This Court does not have power to make fresh findings of fact in relation to the merits of the applicant's claims and evidence. Ground 3 fails to make out any jurisdictional error.
In relation to Ground 4, the Authority took into account the conditions to which the applicant would be exposed in prison or on remand and made findings that were open to it. Ground 4 is in substance, an invitation to this Court to engage in an impermissible merits review. Ground 4 fails to make out any jurisdictional error.
In relation to Ground 5, it is apparent that the Authority did consider the issue of complementary protection in relation to the applicant's claims. The adverse findings made by the Authority were open to it. Ground 5 fails to make out any jurisdictional error.
The application is dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 24 November 2016
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