BRA16 v Minister for Immigration
[2016] FCCA 2855
•7 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRA16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2855 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Class XE) (Subclass 790) visa – whether the Authority correctly applied the statutory provisions – whether there was a denial of procedural fairness by the Authority – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473 DC, 473 DD of pt.7AA |
| Applicant: | BRA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1716 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 7 November 2016 |
| Date of Last Submission: | 7 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2016 |
REPRESENTATION
| The Applicant appeared in person. | |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1716 of 2016
| BRA16 |
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 within the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under Part 7AA of the Act dated 24 June 2016 affirming a decision of the delegate dated 18 May 2016 declining to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa.
The Delegate’s Decision
On 18 May 2016, the delegate found that the applicant was not entitled to protection obligations in Australia.
The applicant was found to be a national of Sri Lanka who entered Australia as an unauthorised maritime arrival on 27 August 2012. The applicant was found to be a Tamil and a Hindu, born in a particular district in the Northern Province of Sri Lanka.
The applicant alleges that at the end of July 2012 four Sinhalese men approached him and his father while they were working as fishermen at the shore with other Tamil fishermen. The applicant alleges the Sinhalese fishermen threatened to harm him and the other fishermen if they did not vacate the area. The applicant alleges that he stood up to the Sinhalese men and told them that his father had the appropriate documentation that permitted him to employ fishermen and to work in the area.
The applicant alleges the Sinhalese men threatened him for having spoken up, and told the applicant that if he got involved he would be killed. The applicant feared that his problems would only get worse and accordingly, the applicant did not report the incident to the authorities.
After this incident, the applicant's father organised his departure from Sri Lanka. The applicant fears harm and possibly death at the hands of the Sinhalese men who threatened to harm him. The applicant also believes that he is at risk of being imprisoned by the Sri Lankan authorities for having illegally departed Sri Lanka.
The delegate identified inconsistencies in the applicant's evidence in relation to the alleged incident involving the Sinhalese men and found the applicant not to be a credible witness. The delegate found that the applicant had made claims in this regard to bolster his claims for protection.
The delegate identified relevant country information and held there was no evidence that the applicant was ever under any suspicion of being a Liberation Tigers of Tamil Eelam (“LTTE”) sympathiser or cadre, and at the interview the applicant said he had not encountered any trouble in Sri Lanka as a consequence of the civil war in the country.
The delegate found there was no reasonable possibility the applicant would face arbitrary arrest or detention or suffer persecutory harm on account of simply being a Tamil. The delegate considered the applicant having left the country illegally and returning as a failed asylum seeker. The delegate found that the applicant would not be subjected to anything more than administrative screening upon his return to Sri Lanka.
Assessment of Refugee Criterion
The delegate was not satisfied there was 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, being Sri Lanka. The delegate found the applicant was not a refugee as defined in s.5H of the Act, and that the criteria under s.36(2)(a) of the Act was not satisfied.
Assessment of Complementary Protection Criterion
The delegate turned to consideration of whether the applicant was entitled to complementary protection under s.36(2)(aa) of the Act. The delegate found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there was a real risk the applicant would suffer significant harm as required by s.36(2)(aa) of the Act.
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 noted that the applicant was not eligible for the grant of a protection visa under s.36(2C) of the Act.
The delegate then made findings that the applicant was not an excluded fast track review applicant and did not meet the definition in s.5(1) of the Act.
The Authority’s Decision
On 19 May 2016, the Authority acknowledged referral of the decision of the delegate for review under Part 7AA of the Act. The Authority’s covering letter dated 19 May 2016 identified that the Authority would proceed to make a decision on the applicant's case on the basis of the information sent to the authority by the Department, unless the Authority decides to consider new information. The letter pointed out that the Authority can only consider new information in limited circumstances. A factsheet and Practice Direction were attached to the letter.
On 7 June 2016, the applicant's migration agent provided submissions to the Authority, together with a statutory declaration dated 7 June 2016 and a document from the United National Party (“UNP”) addressed "To whom it may concerned".
The Authority made reference to the fact that the delegate found that the applicant was not credible in relation to the alleged threat by Sinhalese men whilst a fisherman with his father.
The Authority made reference to the delegate's finding that the applicant would be returning to Sri Lanka as a Tamil and someone who had departed Sri Lanka illegally and as a failed asylum seeker. The Authority made reference to the delegate's finding that the country information did not support that the applicant would face a real chance of serious harm or real risk of significant harm on that basis.
Information before the Authority
The Authority identified that it had regard to the material referred under s.473CB of the Act, and expressly made reference to having received a submission dated 7 June 2016 which included a statutory declaration, other documents and country information from the applicant.
The Authority turned to the submission and statutory declaration and found that that was material that reiterates and addresses claims made by the applicant during the protection visa process. The Authority considered that that was not new information within the meaning of s.473DC of the Act, and accordingly had regard to that information.
In relation to the letter from the UNP, the Authority was not satisfied that there were exceptional circumstances to justify considering that new information.
In relation to the applicant's father's fishing licence, the Authority noted that that was not a document before the delegate. The Authority considered that to be new information, and was not satisfied there were exceptional circumstances to justify its consideration.
The Authority had regard to the school certificate that was before the delegate at the time of the decision. The Authority took the same position in relation to the applicant's national identification card and birth certificate.
The Authority then referred to certain excerpts of country information that the applicant had submitted. The Authority found that that information was not before the delegate at the time of the delegate's decision being made, and considered that to be new information.
The Authority made reference to the fact that the country information pre‑dated the delegate's decision and was not satisfied that there were exceptional circumstances to justify considering that information.
The Authority referred to the applicant presenting an article dated 17 May 2016 which was published the day before the delegate's decision was made. The Authority found that there were exceptional circumstances to justify considering that information.
Applicant’s Claims for Protection
The Authority identified the applicant's claims and evidence, and correctly identified the relevant law.
The Authority did not accept that the Sinhalese men threatened to kill the applicant, or that these men went to the applicant's home subsequent to the applicant's departure. The Authority was not satisfied the applicant's family has faced any harm from the Sinhalese men since the applicant's departure. The Authority was not satisfied the applicant will face any adverse attention from the Sinhalese men if the applicant returned to Sri Lanka now, or in the reasonably foreseeable future. The Authority found the applicant does not have a profile which would attract adverse attention of the Sri Lankan authorities, or the general Sinhalese population.
Refugee Assessment
The Authority was not satisfied the applicant has a real chance of serious harm upon return to Sri Lanka, on the basis of only his ethnicity now, or in the reasonably foreseeable future. The Authority was not satisfied the applicant had a well‑founded fear on the basis of his ethnicity.
The Authority found that the treatment the applicant would face as a consequence of the application of the Immigrants and Emigrants Act 1949 was not persecution within the meaning of s.5J(4) of the Act. The Authority was not satisfied the applicant has any real or perceived connection to the LTTE.
The Authority was not satisfied that the applicant has a well‑founded fear of persecution as a failed Tamil asylum seeker who departed Sri Lanka illegally. The Authority found the applicant not to be of adverse interest to the specific Sinhalese men who questioned him, the Sinhalese population generally, or the Sri Lankan authorities.
The Authority found the applicant's claims in their totality do not give rise to a real chance of serious harm now or in the reasonably foreseeable future. The Authority was not satisfied that the applicant had a well‑founded fear of persecution. The Authority found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act, and found that the applicant did not meet the criteria under s.36(2)(a) of the Act.
Complementary Protection
The Authority turned to the issue of complementary protection. The Authority took into account the applicant's claims individually and cumulatively including threats from Sinhalese men, his Tamil ethnicity, his illegal departure from Sri Lanka and his return as a failed asylum seeker, and found that the claims did not give rise to a real risk of significant harm.
The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the requirements of s.36(aa) of the Act, and affirmed the decision under review.
Proceedings Before this Court
The grounds of the application are as follows:-
1. applicant is a genuine refugee as per Migration Act 1958
2. applicant will be persecuted as per s5J(1) of Migration if returned.
3. applicant is personally targeted for his previous incident with influencial Sinhala men.
(All errors in original)
On 1 September 2016, a registrar of the Court made orders providing the applicant with an opportunity to file further affidavit evidence, an amended application or submissions. Beyond the submission documents which were annexed to the applicant's two affidavits, no other documents were filed.
At the commencement of the hearing, the Court explained to the applicant that this was a 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 by the Authority or a denial of procedural fairness by the Authority to the applicant under the statutory regime for review. The Court explained that in summary this meant the Court was considering whether the Authority's decision was unlawful, or whether the Authority's decision was unfair.
The Court explained to the applicant it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the Counsel 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.
From the bar table, the applicant took issue with the documents that the Authority had failed to take into account, as identified in the Authority's reasons. As indicated in the letter sent by the Authority to the applicant on 19 May 2016, the Authority can only consider new information in limited circumstances.
The consideration of new information in “exceptional circumstances”
Under s.473DD of the Act, the Authority must not consider new information unless satisfied there are exceptional circumstances to justify considering the new information. The Authority was satisfied that the new information in the Tamil Guardian provided by the applicant was not and could not have been provided at the time of the decision of the delegate.
It is apparent in the present case, that the Authority gave careful attention to what was or was not new information within the meaning of s.473DC in the Act. In this case, the Authority did take into account information, being the article published by the Tamil Guardian, dated 17 May 2016, having been satisfied of the requirements of s.473DD in the Act.
Nothing said by the applicant from the bar table identified any jurisdictional error by the Authority. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review, and the Court is not satisfied on the material before it that the applicant was denied procedural fairness in the conduct of the review under the statutory regime.
The applicant's submissions dated 3 July 2016 annexed to the applicant's first affidavit seek to address the inconsistencies in relation to the applicant's evidence. These submissions are in substance, an invitation to this Court to engage in an impermissible merits review. This Court does not have power to make fresh findings of fact.
The adverse findings made by the Authority were open on the material before the Authority and cannot be said to lack an evident and intelligible justification. The Court has taken into account the submissions dated 8 August 2016 annexed to the applicant's second affidavit which takes issue with the information that the Authority identified as being new information which did not meet the requirements of s.473DD of the Act. The submissions dated 3 July 2016 also raised the same issue.
Conclusion
On a fair reading of the Authority's reasons, the Authority correctly applied the statutory provisions. There was no relevant legal error by the Authority in its determination as to information that was held to be new information and that did not meet the requirements of s.473DD of the Act.
Nothing in the applicant's written submissions establishes any jurisdictional error by the Authority. The grounds of the application in substance are a repetition of the applicant's claims and do not identify any jurisdictional error by the Authority or the conduct of its review.
I find that there was no jurisdictional error by the Authority in the conduct of its review and accordingly, the application is dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 24 November 2016
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