BRZ17 v Minister for Immigration

[2018] FCCA 2168

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRZ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2168

Catchwords:
MIGRATION – Application for review of decision of the Immigration Assessment Authority – protection (class XA) visa – whether the Authority denied the Applicant procedural fairness – no jurisdictional error – application dismissed.  

Legislation:

Migration Act 1958 (CT), ss. 36, 57, 473CA, 473DA, 473DB, 463DC, 473GA, 473GB

Cases cited:

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.

Minister for Immigration and Multicultural affairs v Eshetu (1999) 197 CLR 611.
Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16

Applicant: BRZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 804 of 2017

Judgment of: Judge Hartnett

Hearing date: 6 August 2018

Delivered at: Melbourne

Delivered on: 6 August 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 804 of 2017

BRZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed on 21 April 2017 in which the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) made on 29 March 2017 under the Migration Act 1958 (CT) (‘the Act’).  The IAA affirmed a decision of a delegate of the Minister of Immigration and Border Protection (‘the delegate’) dated 1 February 2017 not to grant the Applicant a protection (class XA) visa (‘the visa’). 

2. In his application filed 21 April 2017, the Applicant sets out grounds of application which are as follows:-

   “1. The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant’s procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information.

   2. The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally.  By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.

   3. I have made an application for assistance through Victorian Legal Aid and am waiting for a response from them.”

3. As can be seen from ground 3 above, it is not a ground of judicial review, thus leaving two grounds in the application for review. 

4. The First Respondent seeks dismissal of the application and costs. 

5. On 8 November 2017, procedural orders were made including that the Applicant file and serve written submissions on or before 9 July 2018.  The Applicant is self-represented and he did not file any written submissions in the proceedings.  He was, however, served with the First Respondent’s outline of submissions filed 23 July 2018 and prior to the commencement of these proceedings had read those submissions. 

6. When given an opportunity to make oral submissions this day, the Applicant took up that opportunity and said in general terms the following:-

   a)that upon his arrival in Australia he did not know anything about this country;

   b)whilst he was in the camp, the interpreter made him scared telling him all sorts of things.  He submitted that the interpreter had indicated to him that he should say everything “in short”. Because he was scared, he had no voice. He tried to elaborate but was told by the interpreter that he could not elaborate and that he would have an opportunity to do so in the next interview; 

   c)he did not, however, have a further interview. The Applicant submitted that after arriving in Melbourne he made a submission to the IAA through his lawyer. He was told that as he had not made claims previously he was being refused.  He submitted he thereafter applied to the Court but that his documents were stolen from his car so that he could not produce any documents to the Court this day. The Applicant claimed further that he was in receipt of medical treatment, had taken medicines and that he felt he had not been given an opportunity at his entry interview to explain his problems;

   d)following the oral submissions of the First Respondent in support of the written submissions and in response to the oral submissions of the Applicant, the Applicant reiterated that he had been made frightened by the interpreter and that, as he was scared, he did not say much in his entry interview. He claimed further that the IAA had interviews with others but did not have sufficient time to interview him.  He claimed his documents would have helped explain his history in the camps and that his specific matters were not focused on. Instead, current issues in Sri Lanka were focused on.

Background

1. The Applicant is a citizen of Sri Lanka.  He was born in Jaffna in the northern province of Sri Lanka and is of Tamil ethnicity.  He arrived in Australia as an irregular maritime arrival on 14 October 2012. An entry interview was conducted by an officer of the Department of Immigration and Citizenship (as it then was) with the Applicant on 5 January 2013. The Applicant was invited to, and did lodge, an application for a Safe Haven Enterprise (subclass XE-790) Visa (‘SHEV’) on 11 April 2016.  In his application he claimed to fear harm on the basis of his Tamil ethnicity, and because he would be imputed with the profile of a Liberation Tigers of Tamil Eelam (‘LTTE’) supporter. 

2. The Applicant provided an updated statutory declaration with his SHEV application. His claims for protection, as further provided in his statutory declaration provided with his application, and at his protection visa interview, included the following as accurately set out by the First Respondent in the First Respondent’s submissions at paragraph 4:-

   “4.1 From a young age, he was taught Scouts by members of the LTTE.  He learnt various skills including medical and first aid skills.  In 2007, when he was 14, he finished his scouts training and became a Scouts leader.”

   4.2 His family was displaced between December 2007 and November 2009 due to the civil conflict.  During the conflict he gave medical care to injured people – both in the army and the LTTE. 

   4.3 After returning home in November 2009, he continued with his education.

   4.4 In 2010, he completed a 3-month residential course in agriculture with the Sevalanka Foundation. 

   4.5 In 2010, he was questioned by Criminal Investigation Department (CID) officers on three different occasions about whether he was involved with the LTTE.  On the first occasion he was spoken to when he had finished playing sports. He took the conversation as a warning that the CID were watching him. On the second occasion, he was on his way to the sports ground when the CID diverted him, questioned him for about an hour about the LTTE, and then released him. On the third occasion, CID officers blind-folded him and took him in a white van where he was questioned about the LTTE and his involvement with the Scouts.  On this occasion he was also beaten.

   4.6 In March 2011, a CID officer asked the applicant about his Scouts training.  Two weeks later, he was interrogated and beaten by the CID.  On this occasion, he revealed that he had been taught Scouts by an LTTE member.

   4.7 In May 2011, while applying for a driver’s licence, the applicant was approached by army officers in a patrol car.  The applicant was taken to an office nearby, questioned and beaten.  He was released after 3 or 4 hours through the intervention of Ms Jenna from the Sevalanka Foundation.

   4.8 Six days later, he encountered the CID.  He was told by the CID to go to the police station where he was questioned about his encounter with the army and intervention by Ms Jenna.  He was beaten, and a bag was placed over his head.  When he was released, he was told to report to them if he was going to travel. 

   4.9 In 2012, he befriended a person called Suri who he later found out worked with the CID.  In September 2012, Suri told him that he was being transferred to another area and advised him to leave as the CID might shoot or kill him.

   4.10 On 16 September 2012, the applicant left Sri Lanka illegally by boat.  The applicant’s family are still questioned on occasion about the applicant’s whereabouts.” 

3. On 1 February 2017, the delegate refused to grant the SHEV.  By protection visa decision record dated 1 February 2017, the delegate set out the Applicant’s claims, the delegate’s findings of facts which included reference to relevant country information, and the delegate’s assessment of the refugee criterion and that of complementary protection.  The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to Sri Lanka there was a real risk of him suffering significant harm as defined in s.36(2)(a) of the Act. The delegate was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations as outlined in s.36(2)(a) of the Act nor was the delegate satisfied that the Applicant was a person in respect of whom Australia had protection obligations as outlined in s.36(2)(aa) of the Act.

4. The delegate, during the course of the protection visa interview, put relevant country information to the Applicant for his comment. This included a report from the Department of Foreign Affairs and Trade (‘DFAT’) dated 18 December 2015 which advised that the security situation in the north and east of Sri Lanka had greatly improved since the end of the military conflict. 

5. Further, country information was put to the Applicant which included the UNHCR Guidelines 2012, which advised that there was no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity. The UK Home Office report on Tamil separatism in Sri Lanka dated 19 May 2016 was referred to and its statement that, in general, a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have, a significant role in relation to post-conflict Tamil separatism or appear on a ‘stop’ list at the airport, would not warrant international protection. 

6. Additionally, the delegate, in a letter dated 5 October 2016, advised the Applicant, in accordance with s.57 of the Act, that information had been received which the delegate considered would be the reason, or a part of the reason, for refusing to grant the SHEV.  That information concerned inconsistencies in claims/information provided to the Department of Immigration and Border Protection (‘the Department’) by the Applicant during his entry interview on 5 January 2013, and his protection interview on 26 September 2016.  The Applicant was advised that the information provided to him may lead to an adverse credibility finding which may result in refusal of his application.  He was invited to provide comment on the information provided to him by the delegate.

7. In response, on 5 November 2016, the Applicant’s agent emailed to the Department a statutory declaration dated 7 October 2016 from the Applicant; a letter from Dr Roy Nallaratnam dated 22 October 2016; and a post-interview submission dated 4 November 2016 all of which were considered by the delegate in the making of the delegate’s decision. 

8. In particular, the delegate noted that the Applicant’s agent, in her submission dated 4 November 2016:-

   “…advises that the entry interview conducted by departmental staff on 5 January 2013 with the applicant was not part of a visa application and therefore the content of the interview cannot be considered to be part of the applicant’s current application for a protection visa. Furthermore the applicant was not told the purpose of the entry interview, was told to provide a summarised version of his claims and specifically told not to mention anything that occurred prior to 2012.  The applicant was not provided with a lawyer at the entry interview, not informed about the definition of a refugee or given information about what should be discussed at the entry interview.”[1]

   [1] Court Book, page 148.

9. The delegate noted also that:-

   “The applicant’s agent refers to the audio recording of the entry interview at 46 minutes, 18 seconds, stating that their Tamil speaking lawyer, Joanna Abraham, has noted that the interpreter once again tells the applicant to provide a brief answer in response to the interviewers’ question.  I have reviewed the recording at that time and the comments made by the interpreter are in English and in reference to a date on a document provided by the applicant.” 

10. The delegate noted that she considered both the Applicant and his agent’s responses to the delegate’s concerns regarding the omission of information provided at the Applicant’s entry interview on 5 January 2013.  The delegate said, relevantly, the following in the protection visa decision record:-

    “…I acknowledge that the entry interviewing officer had advised the applicant to provide short responses to allow interpreting and note taking easier and that the applicant was advised he did not have to provide all of his claims at the entry interview.  I do not expect an applicant to remember and provide every relevant detail at the entry interview however I consider it reasonable when the applicant was asked to provide the reason as to why he departed Sri Lanka that he would have provided a response that indicated that he personally had experienced problems with the authorities, if this had actually been the case. Instead the applicant provided a response, stated above, which failed to give any indication that he personally had been having any problems with any authority in Sri Lanka.  He stated he had got his licence and that they threatened us that if we stand in a group we will shoot you … Other people are being abducted in the white van. many people are having problems that is why I came.  However when the entry interviewing officer asked if there had been any further issue, the answer was no. Yet in his TPV interview the applicant raised the same incident and went on to advise that he had been taken at gun point to a room, beaten and detained. 

    Furthermore the applicant was asked some very direct questions regarding any involvement with any party or organisation, whether he had ever been arrested etc, to which he replied no to all questions.  Given that the applicant claimed at his TPV interview that he had been arrested, beaten and detained by both the police and army and approached on a number of occasions by CID officers, I would have expected that there was some indication provided at the entry interview indicating he had been subjected to arrests, questioning and detentions at some point in Sri Lanka. To be asked if he had ever been arrested and the reply was no does not convince me that he is now been truthful at his TPV interview and has only raised doubts in my mind regarding the genuineness of his claims.  I have reviewed the entry interview yet again and am satisfied that the interviewing officer afforded the applicant every opportunity to provide further details regarding any of the issues he had with either the police, army or CID.  The issue for me is not that the applicant did not provide a full account of his claims at the 5 January 2013 interview, but rather that the applicant did not provide any details of having been personally affected. With regards to the applicant’s agent’s request that the entry interview be disregarded as the information was not provided with the applicant’s application for protection, I consider this information relevant to his application before me which was subsequently put to him for comment under s57 of the Act.”[2]

    [2] Decision Record of the delegate, page 6.

11. The matter was referred to the IAA on 6 February 2017 pursuant to s.473CA of the Act. 

The IAA’s decision

1. On 28 February 2017, the Applicant’s representative made a submission to the IAA on the Applicant’s behalf.  The submission contained legal and factual argument on the delegate’s decision with references to extracted passages from various country information; an email verifying the Applicant’s certificate from the residential training program at the Sevalanka Foundation in 2010; and a transcript of the Applicant’s visa interview with the Department on 26 September 2016. 

2. The IAA concluded that except for one particular piece of country information (a report from the International Truth and Justice Project), the information and claims that were before the delegate, the certificate from the Sevalanka Foundation and the Applicant’s interview transcript were all not within the meaning of “new information” for the purpose of s.473DC of the Act.  The IAA, accordingly, had regard to that information.  The IAA said:-

   “…I have listened to the visa interview and have considered the contents of the transcript insofar as it accurately reflects what was said during the visa interview.”

3. The IAA concluded the remaining extracted passages of country information, reports and articles referred to by the Applicant’s representative were “new information” as defined in s.473DC of the Act.  The IAA concluded that this information was general information and was in existence prior to the delegate’s decision. The IAA was not satisfied there were exceptional circumstances to justify considering that material.

4. The IAA noted the Applicant’s claims for protection which are set out earlier in these reasons and noted further that the Applicant claimed his health had been affected by his experiences in Sri Lanka.  The Applicant claimed to have problems with his vision, his memory and to have received daily counselling whilst staying at the detention camp on arrival in Australia.

5. The IAA noted further that in submissions provided to the delegate, the Applicant’s representative had also submitted that the Applicant was at risk of harm on return to Sri Lanka because of his association with an NGO (the Sevalanka Foundation) and the period of time he had resided in Australia which is known for having a large Tamil diaspora.

Findings of the IAA

1. The IAA accepted that the Applicant was a Hindu Tamil from the Kilinochchi district in the northern province of Sri Lanka.  The IAA accepted, as set out in paragraph 14 of the IAA’s Decision and Reasons (‘the Decision Record’), the Applicant’s claims about growing up in an LTTE controlled area, the Applicant’s family’s displacement during the war, the Applicant’s schooling and his involvement in the Scouts as a student at the school and later as a Scouts’ trainer.

2. The IAA also accepted, as being consistent with country information, that on return to their village following the war, the Applicant’s family was subject to ongoing reporting conditions.  The IAA accepted it was plausible that at that time and in an LTTE controlled area, students at the Applicant’s school may have been trained in Scouts’ activities by members of the LTTE. The IAA also accepted the Applicant’s claims that he undertook a leadership role in the Scouts at age 14 and was selected for participation in the agricultural course with the Sevalanka Foundation.

3. The IAA said, in paragraph 15 of the Decision Record:-

   “I am mindful of the difficulties the applicant may have in putting forward his claims for protection and the circumstances under which entry interviews are conducted. I accept that during the entry interview, the applicant did not have the benefit of legal advice or assistance, was asked to provide brief answers and told that he would be provided further opportunity to outline his claims in full.  In his statutory declaration the applicant stated that he thought the purpose of the interview was to establish his identity, he felt he needed to provide very short answers to the questions asked and that at the time of the interview he was feeling depressed, angry and was experiencing memory problems.”

1. The IAA had regard to the Applicant’s mental condition when considering his evidence, referring to a report from consultant psychiatrist, Dr Roy Nallaratnam, under whose care the Applicant had been since 1 August 2016, which noted that the Applicant was being treated for severe anxiety and depression.  The IAA noted that whilst the report did not attest to the Applicant’s psychological health at the time of the entry interview, the IAA nevertheless accepted:-

   “…that given the applicant’s circumstances and background and access to counselling services while in detention, he may have been experiencing symptoms of anxiety and depression at the time of the entry interview.”[3]

   [3] Decision Record, paragraph 16.

2. In paragraph 17 of the Decision Record, and in particular, as relevant to the oral submissions made by the Applicant this day, the IAA said:-

   “Given the primary purpose of the entry interview does not involve seeking detailed information about protection claims, I have not given particular weight to the applicant’s omission about features of his background, such as his involvement with the Scouts, during his entry interview.”

3. However, whilst the IAA indicated that it did not give much weight to matters omitted in the entry interview, by the Applicant, the IAA considered the Applicant’s:-

   “… negative response to a question about whether he was ever arrested or detained by police or security organisations during the interview to be significant, given his later testimony provided as part of his application and visa interview that he was detained by the CID and the army on multiple occasions during 2010 and 2011…”[4]

   [4] Decision record, paragraph 18.

4. The IAA noted that the relevant question asked of the Applicant was straightforward and required simply a “yes or no response”.[5]  The IAA did not accept the Applicant’s explanation for the inconsistency.  The IAA found on that basis that the Applicant’s later claims going to the nature and extent of his encounters with the CID and army personnel to be less credible, and an embellishment of his experience of harassment and monitoring by the authorities.

   [5] Ibid.

5. The IAA noted that the only time the Applicant claimed he was questioned by the CID about his involvement with the Sevalanka Foundation was following his release from an encounter with the army, where his character was endorsed by the Sevalanka Foundation’s leader.  The IAA found that there was no evidence before it that the authorities considered the Sevalanka Foundation to be a political or security risk.  The IAA was satisfied that the Applicant was not imputed with LTTE association on the basis of his study with the Sevalanka Foundation.

6. The IAA noted that there were a number of other aspects in the Applicant’s account of his interaction with authorities from 2010 that were inconsistent with having a profile of LTTE association that would attract the adverse attention of the authorities.

7. Based on country information which indicated that the situation had improved for Tamils since the Applicant left Sri Lanka, and that the monitoring and harassment of Tamils in day‑to‑day life had decreased significantly under the Sirisena government, and also the personal circumstances of the Applicant, the IAA was not satisfied that the Applicant would face a real chance of serious harm for reason of his ethnicity or imputed political profile if he were to return to Sri Lanka.

8. The Applicant also claimed he would suffer harm as a failed asylum seeker and for having departed Sri Lanka unlawfully.  The IAA accepted that the Applicant departed Sri Lanka illegally and that he would return to Sri Lanka as a returned asylum seeker from Australia and is likely to be identified as such. Having regard to country information and the characteristics of the Applicant, the IAA did not accept that the Applicant would suffer serious harm or be targeted by authorities or processed differently by officials on arrival in Sri Lanka on the basis of these characteristics.

Complementary Protection Assessment

1. As the IAA had found the Applicant was not a person of interest to the Sri Lankan authorities, the IAA was not satisfied there was a real risk that the Applicant would be subjected to mistreatment during any possible brief period in detention on return to Sri Lanka.  The IAA was not satisfied that any pain or suffering caused by overcrowding and poor and unsanitary conditions in prison or on remand would be intentionally inflicted.  The IAA did not accept that severe overcrowding and poor conditions were intended to cause extreme humiliation and accordingly did not meet the definition of “significant harm” in s.36(2A) of the Act.  The IAA concluded the Applicant did not meet the s.36(2)(aa) of the Act criteria.

Consideration

Ground 1: failing to raise critical matters or opportunity to reply to adverse information

1. The Applicant has not particularised what particular matters or adverse information it is to which the Applicant refers. To that extent the ground could be considered meaningless.

2. The IAA dealt with each of the claims made by the Applicant, correctly applied the relevant legislation, and made findings open to it on the evidence before it, for the reasons which the IAA gave. Such findings were rational and reasonable.[6]

   [6] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; Minister for Immigration and Multicultural affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

3. The IAA accepted the Applicant’s claims regarding his first two encounters with the CID in 2010 but did not accept the third encounter.  The delegate earlier had not accepted that the Applicant had been previously arrested, questioned or had been reporting until the time he departed Sri Lanka and thus the IAA in fact made findings more favourable to the Applicant than the delegate.

4. The fact, however, that the IAA made different findings to the delegate is not a matter of concern. Part 7AA of the Act contemplates that the IAA will evaluate for itself the material considered by the delegate, and Part 7AA of the Act does not require the IAA to notify the referred Applicant that it is considering taking a different view, adverse to the referred Applicant, in relation to the material considered by the delegate.[7] As was said in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72] by Reeves, Robertson and Rangiah JJ:-

   “…the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.”

   And further, as below:-

   “There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.  Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.

   It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.”[8]

   [7] DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, 72.

   [8] DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, 75-76.

5. Further, as submitted by the First Respondent, s.473DA(1) of the Act makes clear that Div.3 of Part 7AA of the Act together with ss.473GA and 473GB of the Act is an exhaustive statement of the natural justice hearing rule in relation to reviews by the IAA.

6. Whilst there may be circumstances in which it could be legally unreasonable of the IAA not to consider the exercise of the discretionary power in s.473DC(3) of the Act to conduct an interview with the Applicant, the circumstances of this case is not one of them.  The IAA reassessed the material which the delegate had considered and made some differing findings.

Ground 2:  Refusing the Applicant an oral interview

1. Under ss.473DA(1) and 473DB(1) of the Act, prima facie, the IAA was required to conduct a review on the papers without conducting an interview.

2. As was said above, there is nothing in the material to suggest the IAA acted in a manner that was legally unreasonable in not exercising its discretionary power under s.473DC(3) to conduct an interview with the Applicant. Under the statutory scheme, in the circumstances of this case, the IAA was not obliged to inform the Applicant of the issues it considered to arise on the review insofar as those issues were not found to be dispositive by the delegate.[9]

   [9]  DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, 78.

3. Whilst the various powers conferred on the IAA by Div. 3 of Part 7AA of the Act are:-

   “…conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li,[10] with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review….[11]”

   There is nothing in the facts of this case to suggest that the IAA ought to have considered exercising its discretionary power to interview the Applicant.

   [10] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

   [11] Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16, 21.

4. No jurisdictional error attends the decision of the IAA. The application is dismissed and costs shall follow.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  14 August 2018