BVD17 v Minister for Immigration

[2017] FCCA 3046

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVD17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3046

Catchwords:
MIGRATION – Immigration Assessment Authority – the Authority complied with its obligations of procedural fairness by sending the letter to the applicant – the Authority provided reasons in support of its adverse finding in relation to not accepting the applicant was abducted and beaten – the Authority was under no duty to disclose information covered by the certificate or the certificate itself – the failure to disclose the information the subject of the certificate cannot be said to be legally unreasonable – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DA-473DF, 473GA, 473GB, 474, 476

Cases cited:

Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305

MZAFZv Minister for Immigration and Border Protection [2016] FCA 1081

Applicant: BVD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1286 of 2017

Judgment of: Judge Street

Hearing date: 6 December 2017

Date of Last Submission: 6 December 2017

Delivered at: Sydney

Delivered on: 6 December 2017

REPRESENTATION

Counsel for the Applicant: Mr I Chatterjee

Solicitors for the Applicant: Australian Presence Legal

Solicitors for the Respondents: Mr L Dennis
Minter Ellison Lawyers

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 27 November 2017.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1286 of 2017

BVD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 3 April 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise (Class XE) visa.

2. The applicant is a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 13 October 2012. The applicant made the application for a Safe Haven Enterprise visa on 31 March 2016

Claims for protection

1. The applicant claimed to fear harm on account of having escaped the Karuna Group, his Tamil ethnicity and his imputed support of the Liberation Tigers of Tamil Eelam (LTTE). The applicant also claimed to fear harm from the Sri Lankan Army and the Criminal Investigation Unit (CID). The applicant relied upon certain events in support of his claims, relevantly including an adopted brother being killed fighting the LTTE in 2000 having joined the LTTE in 1998, an allegation that in 2008 that the applicant was abducted and beaten by the Karuna Group and that in April 2009, his brother was abducted by people in a white van. The applicant claimed that he was in hiding until he could travel to Qatar in August 2009 and that he returned to Sri Lanka in July 2012The applicant claimed that his mother was taken into custody in March 2012 and that since his departure, the CID had visited his home asking about his whereabouts

The delegate’s decision

1. The delegate did not accept the applicant was abducted by the Karuna Group in 2008 and did not accept the applicant remained in hiding for 17 months. The delegate did not accept the applicant was of interest to the Karuna Group, the CID, the SLA or any other Authority in Sri Lanka.

2. The delegate did not accept as credible the applicant’s claim that the CID, the SLA and the Karuna Group continue to visit the applicant’s house once every two to three months with questions about his whereabouts and otherwise found that the applicant failed to meet the criteria of the grant of the visa under the Act

The Authority’s decision

1. On 10 October 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter identified there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and to put on submissions. No submissions were advanced and no new information was provided on behalf of the applicant requiring the Tribunal to exercise any power under s 473DC of the Act.

Information before the Authority

1. It is in those circumstances that the Authority on 3 April 2017, identified the background to the visa application and identified having regard to the material under s 473CB of the Act. The Authority also identified, taking into account new country information consistent with s 473DE(3)(a) of the Act.

Assessment of Refugee Convention Criteria

1. The Authority summarised the applicant’s claims for protection. The Authority set out the relevant law. The Authority accepted the applicant’s brother was abducted in 2007 and 2009 by the Karuna Group, as well as those claims being consistent with country information. The Authority accepted the applicant’s claim that his brother was abducted by the Karuna Group and the SLA in 2007 and 2009. The Authority accepted that the applicant’s adopted brother joined the LTTE in 1998 and was killed in 2000. The Authority was prepared to accept that the applicant’s mother was detained by Sri Lankan authorities for questioning in March 2012. The Authority found the authorities released her of their own accord. The Authority found that indicates the applicant’s mother was not one who needed to continue in detention and the Authority gave weight to the fact that she was not of interest to the authorities when she and her son passed through the checkpoint on their way to Colombo later in 2012. It was in those circumstances that the Authority found that the applicant’s mother had no adverse profile at this later juncture.

2. The Authority was prepared to accept that the applicant’s mother may have been visited by the authorities on two or three occasions during the year that followed. The Authority did not, however, accept the applicant’s revised evidence that his mother is routinely harassed by the CID or other authorities on a more regular basis. The Authority made reference to a visa interview, where the applicant changed his evidence and suggested that she was being continuously harassed once every two or three months and that the authorities were asking his whereabouts. The Authority made reference to the written application, in which the applicant did not say they constantly came to his home and harassed his mother. The Authority referred to the applicant’s explanation that his mother had withheld the information because she did not want to worry him. The Authority found that explanation does not explain the applicant’s failure to specify the claim that she had been harassed on a regular basis for many years. The Authority found the applicant’s oral evidence in this regard inconsistent with his earlier written evidence and found the later claim at the interview to be an opportunistic attempt to strengthen his claims for protection. The Authority found that the applicant’s mother was subjected to routine monitoring on two or three occasions, as were many Tamils in the east of the country.

3. The Authority found the applicant had provided no supporting evidence of his claims to have been abducted in 2008 or to have been in hiding in 2009 and then 2012. The Authority made reference to it being significant that the summary relating to the brother’s protection claims, as detailed, made no mention of the applicant’s own abduction by the Karuna Group in 2008, which the Authority considered would at least have had some relevance to his brother’s own claims, and the Authority gave some weight to that omission.

4. The Authority referred to the inconsistency in the applicant’s own evidence about the period of his detention. The Authority expressed concern in relation to the applicant’s failure to detail his claims to have gone into hiding for seventeen months following his abduction until the visa interview, the specifics of him going into hiding and his claims that his family continues to be monitored and harassed by the CID. The Authority found the applicant’s evidence about his detention and being in hiding for seventeen months to be vague and unconvincing.

5. The Authority referred to questioning the applicant about his travels to the area of Colombo before his departure from the country and found the applicant did not have a profile with the Sri Lankan authorities, as he had claimed, and did not accept that the applicant would have been given permission to pass through solely with his mother’s intervention or that she herself would not have faced further scrutiny. It was in these circumstances, the Authority concluded that the applicant had fabricated his own claims to have been of interest to the Karuna Group, the CID, the SLA and any other Authority.

6. The Authority did not accept that the applicant’s family has faced serious issues and difficulties from these groups in the past, and was not satisfied the applicant himself has had a profile with any of these groups, or that he has ever been abducted, detained, mistreated or otherwise harmed by any of these groups. The Authority did not accept the applicant had a profile or would have a profile that would lead him to be targeted on return to Sri Lanka for reasons connected to the profile and histories of his other family members. The Authority did not accept the applicant’s younger brother would have any such profile.

7. The Authority gave significant weight to the ability of the applicant to travel in and out of Sri Lanka. The Authority found the applicant himself has no adverse profile or history with the Sri Lankan authorities, the CID, the SLA or Karuna Group, whether directly or through his family. The Authority did not accept the applicant has the profile of a person who would be seen as being in opposition to the Sri Lankan authorities or the Karuna Group, or that he has any actual imputed connection to the LTTE through his adopted brother or father, who both died when the applicant was very young.

8. The Authority was satisfied the applicant was never targeted in connection with his brother’s profile. The Authority found there was no real chance of the applicant being harmed by the Karuna Group for reasons he has claimed, whether in connection with the CID, the SLA or otherwise. The Authority was satisfied the applicant had never had a role, or any indication of evidence to suggest a role, that would have him imputed, together with his Tamil ethnicity, of being pro‑LTTE or an LTTE member. The Authority was satisfied there is no real chance or risk of the applicant being imputed with any LTTE profile or being detained or harmed on this basis.

9. The Authority accepted there remains a degree of discrimination and harassment in the country towards Tamils, but having regard to the country information, the Authority was satisfied it is low level and would not constitute serious harm, whether considered separately or cumulatively. The Authority was not satisfied the applicant would come to the adverse attention of authorities upon return. The Authority found there was no real chance the applicant would be seriously harmed for reasons of his Tamil ethnicity and/or as an LTTE sympathiser should he return to Sri Lanka. The Authority took into account the potential for the application of the Immigrants and Emigrants Act, and found the applicant departed Sri Lanka legally via Singapore, and was not satisfied that he was at risk of prosecution. The Authority noted that the applicant was of no adverse interest or other profile of interest to the authorities. The Authority was satisfied the applicant has a low profile and would not be listed on any stop or watch lists and that he would not be identified as someone trying to conceal their identity, or who has outstanding court orders, arrest warrants or a criminal or terrorist background. The Authority was satisfied the applicant had no such profile as would impute to him an LTTE connection or other profile.

10. The Authority was satisfied that if the applicant is detained, given his lawful departure and his low profile, that it would be temporary and he will face no additional detention, penalty, fine or other harm once he is processed and cleared. The Authority did not accept the brief detention and any related questioning would constitute serious harm. The Authority was satisfied there was no real chance of the applicant being seriously harmed as a returnee, involuntary or otherwise, as a former asylum seeker or a person returning on a temporary travel document.

11. The Authority found it was satisfied there is not a real chance of the applicant being seriously harmed by the Sri Lankan authorities, the CID, the SLA or Karuna Group, or any other group or person on the basis of his ethnicity as a Tamil from the east of Sri Lanka, on the basis of his actual or imputed political opinion or profile, through his family, or as a returnee involuntary or otherwise, former asylum seeker, a person returning on a temporary travel document, or for any other of the reasons claimed. The Authority found the applicant did not meet the requirement of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

Assessment of complementary protection criteria

1. The Authority found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant having returned from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act. It was in these circumstances the Authority affirmed the decision under review.

Before this Court

1. An application was filed in this Court seeking a Constitutional writ on 28 April 2017. On 22 November 2017, an amended application was filed identifying two grounds as follows:

   5. The Second Respondent's decision was affected by jurisdictional error in that it failed to provide the Applicant natural justice within meaning of section 473DA of the Act.

   Particulars

   5.1. The Second Respondent had before it material concerning the Applicant's brother's claims for protection made several years previously (“the brother's claims”).

   5.2. The material relevant to the brother's claims were subject to a certificate issued under section 473GB(5) by the First Respondent (“the material”).

   5.3 If the second respondent was to have regard to the material, it was required to exercise its discretion under s 473GB(3)(b) as to whether to disclose to the Applicant particulars of the material.

   5.4. The Second Respondent intended to, and did rely on the material adversely to the Applicant.

   5.5. The Applicant was entitled, in circumstances where the Second Respondent intended or did rely adversely on the material, to an opportunity to comment on the Second Respondent's decision to have regard to the material under section 473GBC3)(a) and/ or its exercise of powers as to whether to disclose particulars of the material to the Applicant under section 473GB(3)(b).

   5.6. The Applicant was not provided such opportunity and the Second Respondent decided not to disclose to the Applicant any particulars of the material.

   5. 7. The weight placed on the inferences drawn from the material were materially relevant to the Second Respondent's ultimate decision to find that the Applicant was not owed protection obligations.

   6. Further or in the alternate, the Second Respondent's decision was affected by jurisdictional error in that it was legally unreasonable.

   Particulars

   6.1. The Second Respondent relied on the absence of any reference to the Applicant's claims in the material to make findings adverse to the Applicant.

   6.2. The evidence before the Authority indicated that:

   6.2.1. The Applicant's brother was in hiding, or otherwise living apart from the Applicant during the period when the Applicant claimed to have suffered harm from the Karuna Group;

   6.2.2. The Applicant's brother was subsequently detained in a third country; and

   6.2.3. There was limited contact between the Applicant and his brother prior to the brother lodging his application for asylum.

   6.3. The Second Respondent was provided with the material by the First Respondent in circumstances where:

   6.3.1. the content of that material was not disclosed to the Applicant as the material was subject to a certificate issued under section 473GBC5) of the Act; and

   6.3.2. that material was not relied on adversely by the First Respondent.

   6.4. The Second Respondent chose not to exercise its discretion to disclose particulars of that information to the Applicant under 473GB(3)(b) of the Act.

   6.5. The applicant had no notice or opportunity, and provided no comment in relation to the Second Respondent’s intention to draw adverse inference from the omission or references to the Applicant’s claim in the material.

   6.6. The Second Respondent did rely on the material adversely to the Applicant.

   6.7. The weight placed on the inferences drawn from the material were materially relevant to the Second Respondent's ultimate decision to find that the Applicant was not owed protection obligations.

2. Submissions were also filed on behalf of the applicant purportedly in support of the grounds, albeit raising arguments outside and beyond the grounds identified in the amended application.

3. The matter was fixed for hearing today as a result of orders made by this Court on 20 September 2017. At the commencement of the hearing, Mr Chatterjee of counsel confirmed that the two grounds in the amended application were pressed.

Applicant’s request for a stay of proceedings

1. Mr Chatterjee then indicated that he wished to apply for a stay. Mr Chatterjee identified that he was of the view that the Court did not have jurisdiction in respect of the arguments that he wished to develop which were that there was jurisdictional error by the delegate.

2. Mr Chatterjee of counsel correctly recognised that this Court has no jurisdiction to grant relief in respect of the delegate’s decision as it is not a migration decision within this Court’s jurisdiction under s 476 of the Act, in light of the terms of s 474 of the Act. Mr Chatterjee asked that these proceedings be stayed so that his client could commence proceedings in the High Court of Australia to seek relief in respect of the grounds identified in this application so far as they might be advanced against the delegate

3. These are proceedings that have been commenced by the applicant in April of 2017 and have been conducted until today, on the basis that the applicant was seeking to pursue a case for Constitutional relief in respect of the Authority’s decision. That reflects a deliberate course of conduct by the applicant in pursuing the proceedings. For some reason, which is not apparent to the Court, Mr Chatterjee of counsel is of the view that by not developing his oral argument, that this would in some way assist the applicant in preserving the applicant’s opportunities in order to obtain relief in the High Court of Australia.

4. It is not apparent how, in circumstances where the two grounds are still relied upon and where written submissions have been filed and where the applicant has taken these steps to date in these proceedings, the absence of presentation or oral argument by counsel can in any way adversely affect the position of the applicant as a result of the steps already taken in these proceedings. Be that as it may, Mr Chatterjee of counsel maintained that position after the Court clarified with the assistance of the first respondent, the substance of the arguments in answer to the two grounds in the application.

Consideration of the grounds

Ground 5

1. Insofar as ground 5 advances a claim of denial of procedural fairness within the meaning of s 473DA of the Act in relation to natural justice, Mr Chatterjee of counsel appeared to acknowledge that the issues that he wished to raise are the issues that should have been raised before the delegate. Be that as it may, on the face of the material before the Court, the Authority complied with its obligations of procedural fairness in relation to a review conducted under Part 7AA by the sending of the letter to the applicant which identified the limited circumstances in which the Authority could receive new information and provided a fact sheet and practice direction giving the applicant an opportunity to put on new information and to put on submissions. No application was made by the applicant in the present case to adduce further new information under s 473DC of the Act.

Section 473GB certificate

1. The Authority did have before it a certificate issued under s 473GB of the Act which referred to claims from an offshore file of a family member in respect of claims in a PDF portfolio which related to the applicant. The certificate identified that the information should not be disclosed to the referred applicant or the referred applicant’s representative because the document, or any matter contained in the document, or the information was given to the Minister, or the officer of the Department in confidence. The certificate indicated was made pursuant to s 473GB(5) of the Act.

2. The applicant appears to contend that the Authority should have disclosed the certificate and the material the subject of the certificate to the applicant. On the face of the material before the Court, it is apparent that the Authority had regard to the information covered by the certificate and accepted the applicant’s brother was harassed, beaten and abducted. The Authority however, did not accept that the applicant himself was abducted and beaten. The Authority provided reasons in support of that finding. Those adverse findings were open on the material before the Authority for the reasons given by the Authority. The existence of the certificate in the present case does not give rise to any obligation of procedural fairness of the kind identified in MZAFZv Minister for Immigration and Border Protection [2016] FCA 1081.

3. Subsection 473DA(1) of the Act provides that Division 3 of Part 7AA, being s 473DA to s 473DF and s 473GA and s 473GB of the Act are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. Subject to the observations I have made in respect of the opportunity to put on submissions and new information, s 473DA(1) of the Act does otherwise exclude the requirements of procedural fairness in respect of the natural justice hearing rule. In any circumstance, the Authority is under no duty to exercise its discretion to disclose information covered by the certificate or the certificate itself.

4. I accept that the decision in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 supports the first respondent’s submission that there was no denial of procedural fairness in the present case by reason of the failure to disclose the certificate or the information the subject of the certificate. Accordingly, no jurisdictional error is made out by ground 5

Ground 6

1. In relation to ground 6, this in part appears to attack the adverse findings by the Authority in rejecting the applicant’s claims. For the reasons given by the Authority, those adverse findings were open to the Authority and cannot be said to lack an evident and intelligible justification.

2. To the extent that this ground seeks to advance an argument of legal unreasonableness based on the existence of material the subject of the certificate, for the reasons already given, it was open to the Authority to have regard to the material the subject of the certificate and the reasons of the Authority in the present case, are ones where the Authority accepted that the brother had been harassed, beaten and abducted. Whilst the Authority may have a discretion under s 473GB of the Act, in the absence of compelling reasons, it was open to the Authority not to exercise that discretion in the circumstances of the present case. The failure to disclose the information cannot be said to be legally unreasonable. Further, it was open to the Authority to have regard to that information in making findings in respect of the applicant’s claims. The adverse findings cannot be said to be illogical, irrational or unreasonable. No jurisdictional error as alleged in ground 6 is made out.

Written submissions filed in support of ground 5

1. The Court has taken into account the written submissions that were filed in support of ground 5. Those written submissions referred to the adverse finding in respect of the applicant’s credibility, that he had fabricated his own claims to have been of interest to the Karuna Group, the CID, the SLA or any other authority. Reference was made in that regard to the adverse credibility finding and taking into account that the applicant’s brother’s protection claims made no mention of the applicant’s own abduction. The Authority made reference to giving some weight to that omission. I accept that the summary of the brother’s protection claims came from the material the subject of the certificate under s 473GB of the Act. However, for the reasons I have given, the Authority was not required in the circumstances of the present case to exercise its discretion under s 473GB(3) of the Act and no case of legal unreasonableness is made out in that regard.

2. The submissions then seek to address ground 4, albeit the amended application has abandoned that ground. The submissions concede that it is not contended in these proceedings that the certificate was invalid. The submission was advanced that the material was taken into account adversely to the applicant in the present case. It was open, for the reasons already given, for the Authority to have regard to that information in the making of its findings. No jurisdictional error is made out by reason of the Authority doing so. Nothing in the applicant’s written submissions makes out the alleged error in ground 5 of the written submissions.

Written submissions filed in support of ground 6

1. In relation to the written submissions filed in support of ground 6, for the reasons already given, it was open to the Authority to take into account the information the subject of the certificate. The Authority’s findings are not legally unreasonable by reason of doing so. The written submissions do not establish any other jurisdictional error under ground 6.

2. Accordingly, as the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 January 2018