BOJ17 v Minister for Immigration

[2018] FCCA 3592

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3592

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fear found not to be well-founded – whether the Authority failed to give proper consideration to the impact of a scar on the applicant’s forehead and whether the Authority erred in the application of s.473DD of the Migration Act 1958 (Cth) considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 65, 473DC, 473DD

Cases cited:

CSR16 v Minister for Immigration [2018] FCA 474

DHV16v Minister for Immigration & Anor [2018] FCCA 349

Plaintiff M174/2016 v Minister for Immigration [2018] HCA 174

Minister for Immigration v CQW17 [2018] FCAFC 110

Applicant: BOJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1101 of 2017

Judgment of: Judge Driver

Hearing date: 21 November 2018

Delivered at: Sydney

Delivered on: 21 December 2018

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Counsel for the Respondents: Mr H P T Bevan

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application filed on 11 April 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1101 of 2017

BOJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 24 March 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties. 

3. The applicant is citizen of Sri Lanka.  The applicant arrived in Australia on or about 23 October 2012[1] at either Cocos (Keeling) Islands or Christmas Island.[2]  The applicant applied to the Minister’s Department on or about 21 April 2016 for a Safe Haven Enterprise Visa (SHEV).[3]

   [1] Court Book (CB) 186

   [2] CB 51

   [3] CB 24

4. The delegate refused to grant the visa on 10 February 2017.[4]

   [4] CB 183 - 201

5. The delegate’s decision was referred as a fast track decision to the Authority on 15 February 2017.[5]

   [5] CB 203

6. The Authority affirmed the delegate’s decision.[6]

   [6] CB 244 – 260

The present proceedings

1. These proceedings began with a show cause application filed on 11 April 2017.  That application contains five grounds but only the first two were pressed.  They are:

   Ground 1

   The Authority erred in failing to make appropriate findings and/or take into account relevant considerations and/or failed to give realistic consideration to the Applicant's scars and whether it would impute with anti-government connections and/or LTTE connection and/or any risk to the Applicant and/or family links and thereby committed jurisdictional error.

   Particulars

   (a)The Applicant had submitted owing to scars would impute the LTTE links (statement at [20]).

   (b)The Authority erred (IAA at [19]-[20]) in making the relevant findings as to claims.

   (c)Such links is directly relevant in consideration of the Applicant's political opinion / imputed political opinion and the basis of assessing the risks to the Applicant ('persons with LTTE links') upon return. The Authority ignored the claims.

   (d)The Authority fell into error in failing to make the relevant findings in its consideration.

   (e)The Authority thereby committed jurisdictional error.

   Ground 2

   The Authority erred in the construction of the Act (s 473DD and s 473DE) in refusing to give consideration to the arrest warrant and the MP's letter provided by the Applicant (IAA at [7]) and failed to give these claims realistic consideration and thereby committed jurisdictional error.

   Particulars

   (a)The Authority failed to engage with the Applicant's documents.

   (b)There were exceptional circumstances.

   (c)The Authority found that it was not satisfied that the warrant was genuine.

   (d)This formed the reason or part of reason for rejecting the claim (IAA at [11]).

   (e)The Authority fell into jurisdictional error.

2. In relation to Ground 2, only the asserted error concerning s.473DD was pressed.

3. The only evidence I have before me is the court book filed on 21 June 2017.

4. The applicant and the Minister both filed pre hearing written submissions.  They also made oral submissions through their counsel at the trial on 21 November 2018. 

Consideration

Ground 1 – the scarring claim

1. I prefer the Minister’s submissions in relation to this claim.

2. The substantive focus of Ground 1 is the way in which the Authority dealt with the applicant’s claims about his scars.

3. The applicant claimed, among other things, to fear harm on account of an imputed association with the LTTE.[7]  In his statutory declaration submitted with his application, he claimed that he was forcibly removed by the LTTE in 2001, detained and beaten, leaving him “with the scar on [his] forehead”.[8]

   [7] Liberation Tigers of Tamil Eelam

   [8] CB 93 [20]

4. In the submission to the Authority, the applicant stated that the delegate had not considered issues arising from the existence of the scars, including whether this “gives him a political opinion” and also if he “would be safe from persecution upon his return … if the authorities sight the scars on the applicant’s forehead”.[9]

   [9] CB 226

5. The Authority considered that the applicant “has provided a generally credible account of his circumstances in Sri Lanka”.[10]  It accepted many factual aspects of the applicant’s claims.[11]

   [10] CB 249 [17]

   [11] see eg CB 249 [18], [19]

6. Relevantly, the Authority accepted that:

   a)the LTTE sought to forcibly recruit the applicant in 2001, when he was detained and tortured for three weeks;

   b)the applicant has a scar as a result of the beatings he suffered; and

   c)he was forced to perform civilian duties in the LTTE’s political office between 2001 and 2004, during the ceasefire.

7. The Authority stated:[12]

   … It does not appear that any interest in him on the part of the Karuna Group or the TMVP was related to his known former involvement with the LTTE.  I consider that if he thought this were the case he would have explicitly said so, and in view of his very low level and involuntary involvement in pure administrative duties during a period of ceasefire, I consider it extremely unlikely that this would have caused any problems for him either from the Karuna Group, or had the information been passed to the Sri Lankan authorities.  Overall, I am satisfied that this … would not result in his being imputed to be a member of or associated with the LTTE even if it were known.  I have taken into account the fact that the applicant has a scar on his forehead, but do not consider that there is a real chance that this, even in conjunction with his residence in an area that was under LTTE control prior to his departure from Sri Lanka in 2004, and his involuntary and limited dealings with the organisation, would now result in his being imputed to be an LTTE member or supporter.

   (emphasis added)

   [12] at CB 249-250 [19]

8. From these passages, it is clear that the Authority accepted that the applicant had a scar on his forehead and then, critically, went on to consider the impact of this for the applicant were he to return to Sri Lanka.  It decided that the fact that the applicant has a scar, either alone or in conjunction with his previous residence in an LTTE-controlled area, would not give rise to an association with the LTTE being imputed to him.  Put another way, the effect of the Authority’s finding was that the applicant’s scar would not give him a profile of an LTTE supporter, and nor would it elevate whatever profile he did have to that level.  In reaching this conclusion, it is tolerably plain that the Authority squarely addressed both the existence of the scar and its implications for the applicant’s claims.

9. The Authority also considered the effect of the applicant’s scar in the context of his claims to fear harm “as a failed Tamil asylum seeker who departed illegally”.[13]

   [13] CB 252 [30] and 253 [36]

10. Irrespective of the way in which the alleged error under Ground 1 is characterised, whether (as the applicant variously submits) as a failure meaningfully to engage with the claim or to give realistic consideration to it, as a claim of irrationality or illogicality, as a failure to take into account relevant considerations, or as a failure to make relevant findings, the ground cannot be made out.  The Authority plainly gave express consideration to the applicant’s claims insofar as they were affected by his scar.  The cases to which reference is made in the applicant’s submissions do not detract from this conclusion.  This is because the Authority’s conclusions concerning the applicant’s scar fall within the scope of the merits of the case, something which is wholly within the Authority’s purview.  There is nothing to suggest that the Authority made any error in reaching the conclusions that it did, let alone one going to its jurisdiction.

Ground 2 – the new information

1. Ground 2 challenges the Authority’s disposition of “new information”.

2. The “new information” comprises, relevantly, a copy of an arrest warrant with a partial English translation[14] and a letter from the applicant’s local member of parliament.[15]  Subject to my observations below, I also prefer the Minister’s submissions in relation to this ground.

   [14] see CB 246 [7] (first dot point) and CB 233-235

   [15] see CB 246 [7] (second dot point) and CB 236-238

Arrest warrant

1. The Authority first dealt with the arrest warrant and its partial English translation and was not satisfied that the requirements of s.473DD(b) were met.[16] Indeed, it was not satisfied that either limb of s.473DD(b) was made out.

   [16] CB 247 [10]

2. First, the Authority did not accept that the warrant “could not have been provided before the delegate made the decision refusing the grant of the visa”.[17]  It noted that the applicant did not claim he was unaware of the warrant.  As to the applicant’s explanation for his failure to provide the information (i.e., he was afraid he would be returned to Sri Lanka), the Authority noted that he had legal representation during his application process and that the application form expressly referred to outstanding charges and warrants.  The Authority did not accept that the applicant was not aware of his obligation of disclosure.  It also expressed “great difficulty” in accepting his explanation given the circumstances of his arrival “demonstrated … that he had committed an offence by departing illegally”.  The Authority concluded that the applicant “chose not to provide the warrant to the delegate” and was not satisfied “that he could not have done so”.[18]

   [17] section 473DD(b)(i)

   [18] CB 247 [10]

3. Secondly, the Authority was not satisfied that the warrant (either alone or when read with the partial translation) was “credible personal information which may have affected the consideration of the applicant’s claims”.  The Authority identified that the documents were copies (not originals) and that the translation was incomplete, referring only to the applicant’s failure to attend Court and not to the charges, such that the Authority was not persuaded as to its genuineness.[19]

   [19] CB 247 [11]

4. In this way, the Authority made express findings that both alternative limbs under s.473DD(b) were not satisfied. Having done so, it was not required to make a finding under s.473DD(a).[20] The applicant’s argument to the contrary is not only against the trend of the authorities, it fails to grapple with the detailed reasons given by the Authority with respect to its examination of the criteria under s.473DD(b).

   [20] see, e.g., Minister for Immigration v CQW17 [2018] FCAFC 110 at [71]-[73]. See also DHV16v Minister for Immigration & Anor [2018] FCCA 349 at [89]-[91]

5. The Authority’s consideration of the arrest warrant and the translation document is somewhat problematic as well as being extensive.  In relation to those documents, the Authority deals with both the temporal issue and the question of whether the documents were credible personal information.  The real issue arises in respect of what the Authority states at [11]:[21]

   Nor am I satisfied that the document is credible personal information which may have affected the consideration of the applicant’s claims.  The documents provided are not originals but are scanned, rather poor copies.  The translation appears to be only of an extract of the document, as it consists of about seven lines of text, whereas the warrant itself comprises one page of closely typed text (albeit that it is in two languages).  The translated document does not refer to the charges faced by the applicant, only to his failure to attend court.  In these circumstances, I am not satisfied that the document is genuine.

   [21] CB 247

6. The Authority was confronted by the problem of having two documents which it asserted were poor copies.[22]  The Authority noted that the English translation at CB 235 was very brief whereas the warrant was much more extensive (in fact, two pages including the execution page).  The Tribunal also noted that the warrant was in two languages.  In fact, it appears to be in three languages, namely Sinhalese, Tamil and English.  To the extent that the document is in typewritten form with an English translation, it could be read and understood by the Authority.  However the relevant details are completed in the document in handwriting in what is presumably the Sinhalese language.  The Authority was plainly troubled by the fact that the translation was only an extract and that the translated document did not refer to the charge faced by the applicant, only to his failure to attend court.  In the circumstances, it was not satisfied that “the document” is genuine.  It is not clear whether in that connection the Authority was referring to the purported warrant, or the summary English document or both. 

   [22] the copies reproduced at CB 233-235 appear good quality copies

7. In dealing with s.473DD(b)(ii), the Authority is only called upon to make a preliminary assessment of the credibility of information. It is an error for the Authority to make a definitive conclusion at the point of considering whether to receive new information.[23] 

   [23] See CSR16 v Minister for Immigration [2018] FCA 474

8. While it is arguable that in this respect, the Authority fell into error, on a fair reading of [11] of its reasons, I am willing to accept that the Authority could not be satisfied that the documents contained credible personal information. Further, and in any event, I see no error with the Authority’s approach at [10] which provided an independent basis for the rejection of the new information under s.473DD(b)(i).

MP’s letter

1. The Authority’s reasoning with respect to the MP’s letter is at CB 237.  It said:[24]

   I have not considered the letter from the [MP].  Although the letter itself was written after the delegate’s decision, it appears to have been provided at the applicant’s request (via his wife), and I am not satisfied that the applicant could not have obtained the letter before the delegate’s decision was made.

   [24] at [12]

2. The applicant’s argument has two limbs: first, the information was not “new information” (whether in whole or in part) because it was corroborative; secondly, the Authority failed to consider “exceptional circumstances”.

3. The Minister contends that the first limb of the applicant’s argument misapprehends the nature of “new information”. Relevantly, it is “documents or information” that “were not before the Minister when the Minister made the decision under s 65”.[25]  Here, the fact that the letter is said to be “corroborative” does not detract from the conclusion that it was not before the delegate.  If anything, it is to the contrary.  In addition to the applicant’s obligation to provide evidence in support of his claims,[26] there should be no dispute that the MP’s letter was not, in fact, before the delegate. The Minister submits that, irrespective of the degree of corroboration that the letter might provide, the fact that the letter was not before the delegate renders it a document within the meaning of s.473DC(1)(a).

   [25] section 473DC(1)(a)

   [26] see s.5AAA

4. I reject the applicant’s contention that the MP’s letter was not “new information”.  While it is true that the same MP had provided an earlier letter of support which had been put before the delegate[27] the more recent letter was more comprehensive and could not be said to be simply traversing the same ground as the earlier letter. 

   [27] CB 180

5. I also reject the Minister’s submission (if such was made) that there is a relevant distinction to be drawn between documents and the information in them for the purposes of this case.  As the High Court found in Plaintiff M174/2016 v Minister for Immigration:[28]

   The term "new information" must be read consistently when used in ss 473DC, 473DD and 473DE as limited to "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

   [28] [2018] HCA 174 at [24]

6. The Authority made a finding, impliedly if not expressly, that the limb under s.473DD(b)(i) was not satisfied. That is to say, the Authority effectively found that the MP’s letter could have been provided because it could have been obtained at an earlier stage and provided to the delegate. In so doing, the Authority found that s.473DD(b) was not satisfied. As the requirements in paragraphs (a) and (b) of s.473DD are cumulative (where new information is provided by an applicant), the Authority was not required to make a separate assessment as to the existence or otherwise of exceptional circumstances.[29]

   [29] CQW17 and DHV16

7. I accept that the Authority made no determination on the question of exceptional circumstances for the purposes of s.477DD(a) of the Migration Act. It was under no obligation to do so, provided that it made a lawful determination for the purposes of s.473DD(b). In relation to the MP’s letter, the reasoning is brief and limited to the temporal consideration in s.473DD(b)(i). That subparagraph only calls for an analysis of the temporal consideration. The mischief in limiting consideration to that temporal issue arising in other contexts, in particular a purported consideration of exceptional circumstances, is absent in this case. I see no error in the Authority’s approach in relation to the MP’s letter.

Conclusion

1. The applicant has failed to establish 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.

2. I will hear the parties as to costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  21 December 2018