BTL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3282

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTL18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3282

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority’s findings open to it – no jurisdictional error – application dismissed.

Legislation:

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

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]
FCAFC 10
VWFW v Minister for Immigration & Multicultural &
Indigenous Affairs [2006] FCAFC 29
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996)
185 CLR 259

Applicant: BTL18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 967 of 2018

Judgment of: Judge Emmett

Hearing date: 14 November 2019

Date of Last Submission: 14 November 2019

Delivered at: Sydney

Delivered on: 14 November 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Mr Tom Hillyard
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 967 of 2018

BTL18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 9 April 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority dated 14 March 2018 (“the Authority”).  

2. The background, applicant’s claims and the Authority’s decision are accurately summarised in the first respondent’s written submissions, as follows:

   “Background

   2. The applicant, a citizen of Sri Lanka, arrived in Australia on 24 August 2012 at Cocos Island as an unauthorised maritime arrival (CB 104). On 8 August 2016, the applicant made a valid application for a SHEV (CB 84-120). On 23 August 2017, the applicant attended an interview with the delegate (CB 143). On 16 November 2017, the delegate refused to grant the applicant a SHEV (CB 142-155) and referred the decision to the Authority for review under Part 7AA of the Act. On 14 March 2018, the Authority affirmed the delegate's decision not to grant the applicant a SHEV (CB 168-183).

   Applicant's claims

   3. The applicant provided two statutory declarations with his SHEV application that set out his claims for protection. In the first Statutory Declaration dated 15 August 2013 (CB 55-57) he claimed:

   3.1 From 2010, the applicant went to live with his maternal uncle, H, in Savakkaadu so he could attend school and work with him as a fisherman. During 2010, H was questioned about his suspected links with the Liberation Tigers of Tamil Eelam (LTTE) for transporting explosives on his fishing boat and by car. As a result, H was tortured and detained for 1.5 years in Colombo. After his release, H was required to report to the Terrorist Investigation Department (TID) in Colombo on a monthly basis.

   3.2 While H was detained, the Criminal Investigation Department (CID) questioned the applicant and his parents about H's involvement with the LTTE. Because the applicant worked with H, the CID began to suspect he too was involved with the LTTE and harassed him.

   3.3 H and the applicant's father became worried about the applicant's safety and arranged for him, his brother and cousin to travel to Australia. 

   4. In the second statutory declaration dated 31 May 2016 (CB 126), the applicant provided further background about his family and advanced the following claims:

   4.1 His grandfather was killed by the Sri Lankan Army (Army) in approximately 2006. A few months after, his father was detained by the Army for two-three months over the grandfather's suspected involvement with the LTTE.

   4.2 In 2010, his maternal uncle, A, was kidnapped and disappeared because he had assisted the LTTE. A has not been seen since.

   4.3 Since the applicant's arrival in Australia, his mother has informed him that the TID have come to his house asking for him a number of times. They are aware he is in Australia.

   4.4 H continues to report to the TID and if the applicant returns, he fears that he will be arrested and interrogated by the TID because they suspect he has links to the LTTE because of both his uncles' situations with the TID.

   4.5 The TID are now more suspicious of him and he will be punished because he left the country illegally and has been in Australia for years. He has seen on the news that people returning to Sri Lanka are being interrogated and tortured.

   Authority decision

   New information

   5. The Authority had regard to the material referred by the Secretary under s 473CB of the Act (CB 169, [3]). It also identified a written submission which contained references to two country information reports that were not before the delegate. The Authority found that to the extent the submission engaged in argument with the delegate's decision, reasserted the applicant's claims and referred to country information that was before the delegate, it was not new information and the Authority had regard to it (CB 169, [4]).

   6. The Authority identified that the two new country information reports referred to the proposition that under the Prevention of Terrorism Act, the Sri Lankan authorities continue to have the power to detain persons on suspicion of LTTE links without charge for up to 18 months. The Authority found that neither limb in s 473DD(b) was met because: both documents pre-dated the delegate's decision and neither contained information that could be described as personal. The Authority noted that there was other credible country information in the review material that dealt with the issue referred to in the applicant's submission. Therefore, the Authority was not satisfied that there were exceptional circumstances to justify considering the information (CB 169, [5]).

   Consideration of claims

   7. The Authority accepted that the applicant's grandfather was killed and that his father was detained for a period during the conflict. The Authority also accepted that whilst the applicant's father was detained, he was questioned about any LTTE involvement (CB 171, [14]). In respect of his uncle A, the Authority accepted that he disappeared in 2010, that he was still missing, and that it was possible the TID were responsible (CB 172, [16]). In relation to his uncle H, the Authority accepted that H may have been detained for a period of time, but did not accept that he was required to regularly report to the authorities (CB 172-173, [18]). Further, the Authority did not accept that either uncle was involved in transporting goods for the LTTE (CB 173, [19]).

   8. During the SHEV interview, the applicant indicated that because he was suspected of helping his uncles, the authorities had been searching for him and he therefore went to stay at a friend's house in Colombo and Vavuniya (CB 173, [20]). The Authority found the applicant's evidence in this regard to be vague, inconsistent and unconvincing (CB 173-174, [21]). The Authority did not accept that the applicant was in hiding or that he was a person of adverse interest to the Sri Lankan authorities, or any other group, prior to his departure from Sri Lanka or since (CB 174, [21], [22]). The Authority was not satisfied that the applicant had or would be imputed with any LTTE connection as a result of his family links (CB 174, [23]).

   9. Having regard to country information (CB 174-176, [24]-[29]), the Authority was satisfied that the situation for Tamils in Sri Lanka had significantly improved since the applicant's departure in 2012 and that the chance of the applicant being imputed with any LTTE connection currently or in the foreseeable future was remote, including on the basis of his Tamil ethnicity. It was not satisfied that the applicant faced a real risk of harm because of any real or imputed connection to the LTTE, because of his residence in an area formerly controlled by the LTTE or any combination of those circumstances (CB 176, [30]).

   10. The Authority accepted that the applicant would be identified upon his return to Sri Lanka as a returning asylum seeker who departed illegally by boat (CB 176, [32]). However, based on its anterior findings, the Authority was not satisfied that the applicant would face a real chance of harm for being a Tamil who sought asylum in Australia or because he spent a period of time in Australia (CB 177, [35]). The Authority found that any brief period of detention and the possible imposition of a fine and questioning would not amount to serious harm (CB 177, [36]). Further, the Authority found that the law was not discriminatory in nature or in its application and therefore, was not satisfied that there was a real chance of persecution on account of the applicant having departed Sri Lanka illegally (CB 177, [37]).

   11. As a result, the Authority found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act (CB 177, [38]).

   12. Relying on its anterior findings of fact, the Authority was not satisfied that the applicant faced a real chance of significant harm as a Tamil male from a former LTTE controlled area, because of his family connections or for seeking asylum in Australia, nor was it satisfied that the applicant's possible treatment and punishment upon return to Sri Lanka as a result of his illegal departure met the definition of significant harm (CB 178, [41]-[42]).”

3. The applicant was unrepresented before this Court, although had the assistance of an interpreter.

4. The applicant confirmed that he had attended a directions hearing before a registrar of this Court on 30 April 2018 on which occasion he had been given leave to file and serve an amended application, any further evidence and submissions in support of his application. The applicant was also provided at that time with the contact details of legal services providers and translating and interpreting services in documents headed in his own language. On that occasion, the matter was set down for call over on 13 June 2019, on which occasion the applicant was again directed to file and serve submissions in support of his application.

5. The applicant confirmed to the Court this morning that he had not filed any documents either in accordance with the Court’s directions or otherwise, and, that he had no further documents to provide to the Court this morning.

6. The grounds of the applicant’s application, filed on 9 April 2018, are as follows:

   “Ground 1

   IAA made a jurisdictional error by mis-applying the well-founded fear test.

   Particulars

   IAA did not consider the changing situation in Sri Lanka.

   Ground 2

   IAA failed to exercise its jurisdiction.

   Particulars

   IAA failed to discern a Convention reason, namely imputed political opinion similar to that of the LTTE”

7. The grounds of the applicant’s application were interpreted for the applicant and he was invited to say whatever he wished in support of those grounds. The applicant, at first, had nothing to say in support of either ground. The first respondent relied on their written submissions. I then asked the applicant was there anything further he wished to say in support of his application and he said that there were newspaper reports and that he would face problems if he returned.

8. I asked the applicant if they were newspaper reports that he had given to the Authority. The applicant at first said, yes they were. Then the applicant said that he had not given the newspaper reports to the Authority. There is nothing in the Authority’s decision record to suggest that there were newspaper reports given to it by the applicant. I explained to the applicant that it could not be a mistake on the part of the Authority for it not to consider documents that he had not given it.

Ground 1

1. Ground 1 asserts that the Authority did not consider the changing situation in Sri Lanka, thereby, misapplying “the well-founded fear test”.

2. The Authority referred with particularity to the country information to which it had regard. The Authority noted that on 10 December 2017, it received a submission from Sentil Solicitor and Barrister, who assisted the applicant to make written submission but did not represent him. The Authority noted that the submission included reference to two country information reports to support the proposition that under the Prevention of Terrorism Act, the Sri Lankan authorities continued to have the power to detain persons of suspicion of LTTE links without charge for up to 18 months.

3. The Authority considered whether the information provided in the submission constituted new information under s.473DD of the Act. Section 473DD of the Act is as follows:

   “Considering new information in exceptional circumstances

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

4. The Authority noted that the documents referred to above were not before the delegate and constituted new information. The Authority noted both documents predate the decision of the delegate, and do not contain information that may be described as “personal credible information”. The Authority also noted that there was other credible country information in the review material that dealt with the issue referred to in the submission.

5. In the circumstances, the Authority was not satisfied that the requirements in s.473DD of the Act were met with regard to the additional documents and was, therefore, not satisfied that exceptional circumstances existed to justify it considering the information.

6. A fair reading of the Authority’s decision record makes clear that the Authority understood its obligations under s.473DD of the Act in relation to the new information and dealt with that information according to law. The Authority considered in great detail the country information before it and made findings substantially based on that country information.

7. In particular, and in relation to the Prevention of Terrorism Act referred to by the applicant in its submission, I note that the Authority made the following findings in relation to that and other country information:

   “29. Under the Siresena Government, monitoring and harassment of Tamils in day-to-day life has decreased significantly, and members of the Tamil community have also described a positive shift in the nature of interactions with authorities; they feel able to question the motives of, or object to, monitoring or observation activities. The Siresena government has prioritised human rights and reconciliation, and has made significant progress, including replacing military governors in the Northern and Eastern Provinces with civilians, returning some of the land held by the military since the conflict-era back to its former owners, releasing some individuals detained under the Prevention of Terrorism Act (PTA), including Tamils, and committing to reform the PTA, and engaging constructively with the United Nations. An Office of National Unity and Reconciliation (ONUR) has also been established to develop a national policy on reconciliation. DFAT assesses there are currently fewer individuals detained under the PTA than there were during the conflict. The emergency regulations were repealed in 2011, and although the PTA is still in place, it is under review.

   30. I am satisfied the situation for Tamils in Sri Lanka has significantly improved since the applicant departed Sri Lanka in 2012, and continues to improve. I have found the applicant does not have any links to the LTTE, and he has not been subjected to attention from the authorities in the past. There is no evidence to suggest the applicant has any outstanding criminal matter against him, or that has been involved in Tamil separatist activities. Taking into account the applicant's profile and the country information before me, I find the chance of the applicant being imputed with any connection to the LTTE currently or in the foreseeable future is remote, including on the basis of his Tamil ethnicity. I am not satisfied the applicant faces a real chance of harm on the basis of his Tamil ethnicity, because of any real or imputed connection to the L TTE, because of his residence in an area formerly controlled by the LTTE, or any combination of those circumstances.”

   (Footnotes omitted)

8. The country information considered by the Authority was relevant to the applicant’s claims and his situation. There was no post-hearing submission by the applicant to the Authority identifying or providing more recent country information or country information that was materially different to that relied on by the Authority.

9. It is well established that the country information to which the Authority has regard and the weight it gives that country information is a matter for the Authority (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

10. In the circumstances, the Authority’s findings that the applicant did not face a real chance of serious or significant harm, if returned to Sri Lanka, was open to it based on the material and evidence before it and for the reasons it gave. That finding followed detailed consideration of the applicant’s evidence and detailed consideration of the county information before it. The Authority’s finding was logically probative of the issues before it and was not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

11. Accordingly, Ground 1 is not made out. 

Ground 2

1. Ground 2 asserts that the Authority failed to find that the applicant satisfied the Convention criteria by reason of imputed political opinion because of his association with the LTTE or perceived association with the LTTE.

2. A fair reading of the Authority’s decision record makes clear that the Authority considered whether the applicant would be imputed with a pro-LTTE opinion and was not satisfied that he would be imputed with any LTTE links. The Authority found the applicant did not have any links to the LTTE and had not been subjected to attention from authorities in the past. The Authority found there was no evidence before it to suggest that the applicant has any outstanding criminal matter against him, or that he has been involved in Tamil separatist activities. 

3. Taking into account the applicant’s profile and the country information before it, which demonstrated that the situation for Tamils in Sri Lanka has significantly improved since the applicant departed Sri Lanka in 2012, the Authority found that the chance of the applicant being imputed with any connection to the LTTE currently, or in the foreseeable future, to be remote, including on the basis of his Tamil ethnicity. The Authority concluded that the applicant did not face a real chance of harm on the basis of his Tamil ethnicity; because of any real or imputed connection to the LTTE; because of his residence in a formerly controlled area by the LTTE; or, any combination of those circumstances. 

1. The Authority also considered whether the applicant was at risk on his return to Sri Lanka by reason of having sought asylum in Australia. The Authority accepted that some asylum seekers with actual or perceived links to the LTTE may be at risk of harm during the arrival process. However, the Authority found that the applicant does not have a profile of interest to authorities on his return to Sri Lanka and did not consider that the applicant faced a real chance of harm for being a failed asylum seeker in Australia.

2. Ultimately, the Authority concluded that there was not a real chance that the applicant faced any harm, now or in the reasonably foreseeable future, as a Tamil male from a former LTTE-controlled area because of his family connections or for seeking asylum in Australia. The Authority found that the applicant was not at risk of either significant or serious harm and did not satisfy either the Convention criteria in s.36(2)(a) of the Act or the complementary criterion in s.36(2)(aa) of the Act.

3. Again, those findings by the Authority were open to it on the evidence material before it and for the reasons it gave. The Authority’s reasons were cogent and its findings were probative and reasonable. 

4. Accordingly, Ground 2 is not made out. 

Conclusion

1. The applicant’s complaints, as I understand them to be, are more in the nature of a disagreement with the findings and conclusions of the Authority. Such complaints invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

2. In the circumstances, the Authority complied with its obligation under the statutory regime in the making of its decision, including the conduct of its review. A fair reading of the Authority’s decision record makes clear that the Authority identified the applicant’s claims; explored those claims with the applicant at a hearing; put to the applicant concerns it had about his evidence; and, noted the applicant’s responses. The Authority identified with particularity the country information to which it had regard.

3. The Authority’s decision is not affected by jurisdictional error and, in accordance with s.474 of the Act, is therefore a privative clause decision. Accordingly, this Court has no power to interfere.

4. The proceeding before this Court should be dismissed with costs. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date:  25 November 2019