BVM16 v Minister for Immigration & Anor
[2016] FCCA 3183
•22 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVM16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3183 |
| Catchwords: MIGRATION – Immigration Assessment Authority review – no error revealed. |
| Legislation: Migration Act 1958 (Cth), ss.357A, 422B, 473DA |
| Cases cited: MZAFZ v Minister for Immigration and Border Protection (2016) FCA 1081 Singh v Minister for Immigration and Border Protection (2016) FCCA 2464 |
| Applicant: | BVM16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 650 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 22 November 2016 |
| Date of Last Submission: | 22 November 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 22 November 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms A. Wheatley |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 19 July 2016 be dismissed.
The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
No. BRG 650 of 2016
| BVM16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is of Tamil ethnicity and Hindu faith. He comes from Jaffna in the Northern Province of Sri Lanka. He arrived in Australia on 17 August, 2012 and he lodged an application for a Safe Haven Enterprise visa on 10 September, 2015. How he came to do that is not particularly important for the purposes of this application.
His Safe Haven Enterprise visa was refused by a delegate of the first respondent on 20 May, 2016. That refusal was referred to an immigration assessment authority, pursuant to Part 7AA of the Migration Act 1958 (Cth). The immigration assessment authority determined that the Minister’s decision to refuse the visa ought not be disturbed.
By this application the applicant seeks judicial review of the decision of the immigration assessment authority. The applicant in his application for review specifies the three broad grounds in respect of which he says he ought to be given relief. The grounds, as the first respondent has pointed out, are formulaic and contain no particularity. I will return to the grounds in more detail shortly.
In its reasons for decision, dated 24 June, 2016 the authority recorded the applicant’s claims that he made in support of his visa application. He claimed that he was a Tamil male who had lived in a former LTTE-controlled area; his brother was a member of the LTTE. He had been picked up and detained on at least three occasions – once in 2008 when he was detained by the Army, arrested and mistreated on suspicion of involvement in a bombing. On the second occasion in 2010 he was picked up by members of the TMVP – or the Karuna Group – on account of his brother’s involvement in the LTTE. He claimed that he closely resembles his brother and is always likely to be mistaken for him and therefore mistaken as a person who is a member or associated with the LTTE.
He says that he was required to report regularly to the Army because he was a person of interest to the authorities. He departed Sri Lanka illegally, and he says that by reason of that and the fact that he has claimed asylum here in Australia, if he returns he will be subjected to persecution in the form of serious harm. He will be, he says, suspected of being a member of or associated with the LTTE. He says that if he returns to Sri Lanka, his life will be in danger.
The assessment authority, for its part, accepted most of the claims made by the applicant. There were some things that the assessment authority did not accept. The assessment authority accepted, for example, that the applicant’s brother was a member of the political wing of the LTTE; that he had opened an office of the LTTE when conditions in Sri Lanka had permitted that to happen; that he was involved in housing construction projects in a number of villages. The assessment authority accepted that the applicant, for example, assisted his brother with that work, and in particular construction work, in about 2005. The assessment authority was satisfied that the applicant’s brother was a middle-ranking official in the LTTE’s political wing.
The assessment authority accepted, by and large, the applicant’s claims about being arrested and detained. The assessment authority accepted that on one occasion in 2008, following a bomb explosion in a market place, the applicant was picked up by the Army and detained and arrested on suspicion of involvement in planting the bomb. The assessment authority accepted that he was detained for some time and questioned on whether he was part of the LTTE or he knew anyone in the LTTE. The assessment authority also accepted that the applicant was detained by the TMVP – a derivative of or perhaps an ancestor of the Karuna Group – in September, 2010 and he was questioned and severely beaten in order to obtain information on the whereabouts of his brother.
It was the applicant’s case – and the assessment authority accepted – that the applicant looks like his brother. Those that arrested him in September, 2010 knew that he was not his brother and they sought information about the whereabouts of his brother. The assessment authority accepted much of the other matters that were put to it and to the Minister, for that matter, by the applicant.
The assessment authority in paragraphs 65 to 91 of its decision record then tested the facts that the assessment authority had found against the statutory criteria for the grant of the relevant visa. I will not detail the assessment authority’s reasoning in those paragraphs. It is safe to say that it is apparent from those paragraphs that the assessment authority carefully considered each of the matters that it found to exist in the applicant’s case against the statutory criteria.
The assessment authority concluded, however, that the applicant did not meet the definition of refugee in s.5H(1) of the Act and he did not, therefore, meet the relevant criteria in s.36(2)(a) of the Act. The tribunal, when it made those determinations, considered the matters and facts in respect of which it was satisfied and also other information that was available to it – country information – which suggested, for example, a change in the political conditions in Sri Lanka.
The assessment authority’s reasons reveal a careful consideration of the material, especially the material from the Department of Foreign Affairs and Trade. As the applicant himself points out in some submissions that he has handed up to me today, this is not a case where the assessment authority has chosen to determine the application before it on the basis of the applicant’s credibility. As I have indicated already, by and large, the assessment authority accepted the claims made by the applicant.
The applicant argues in the written submissions that he has handed up today that the tribunal has failed to understand or take into consideration in the making of its decision that – I should say I am quoting from paragraph 13 of his written submissions:
(a) I looked very similar to my brother, (b) my brother was a member of the LTTE, (c) a former member of the LTTE, having joined the government with Karuna, is able to identify me and that I will be differentiated from the normal returnees, (d) I have already been identified in the files that I am overseas and require to report to the army camp upon return to Sri Lanka.
The reference there to the tribunal, of course, is a reference to the assessment authority. The matters set out by the applicant in that paragraph are plainly matters that the assessment authority has taken into account in its reasons. It was alive to the fact that the applicant looks very similar to his brother. It was alive to the fact that his brother was a member of the LTTE. The assessment authority made findings about that. The assessment authority was alive to the fact that organisations such as the Karuna Group were looking for his brother and that he had been arrested and detained whilst they were looking for him. It was alive to the fact that his brother had gone missing in about 2007.
The applicant’s submission that by reason of:
a)his similarity to his brother;
b)the fact that he has already been identified in the files that he is overseas; and
c)the fact that he has in the past been required to report to the Army camp
upon his return to Sri Lanka he will be at risk of harm.
But those submissions, it seems to me, are inconsistent. The inconsistency arises from the fact that it seems those that are looking for or who have in the past been looking for his brother, have arrested and detained the applicant knowing that the applicant is similar in appearance to his brother but is not his brother. To the extent that the applicant’s case is built upon the proposition that he will be mistaken for his brother, his own claims and evidence seem to be against that proposition. That seems to be the way in which the assessment authority reasoned its decision.
In his written submissions handed up this morning the applicant also cavils with the assessment authority’s treatment of his claim to complementary protection. The assessment authority determined that his claim under s.36(2)(aa) was not made out largely for the reasons it gave in respect of his primary application: he was unlikely – and these are my words it is not an attempt to use the words of the statute – to face significant harm upon his return to Sri Lanka.
In respect of the claim for complementary protection, this morning the applicant argues:
On consideration under complementary protection provisions, the tribunal has accepted that I looked like my brother and can be mistaken for him; accepted that my brother was an LTTE member, irrespective of what rank he held. The only conclusion one can make of this is that the likelihood of my being detained as my brother and punished as an LTTE member is extremely possible.
I have already dealt with that argument in respect of the applicant’s claim more generally under section 36(2)(a) of the Act. The assessment authority’s reasons for rejecting the applicant’s claims about those matters are clear. The reasons of the assessment authority are transparent.
The grounds of review relied upon by the applicant in this application for review are threefold. The first is that the Minister erred in law by taking into consideration facts not relevant to the matter in making the decision. The second is that the Minister erred in law by not taking into consideration relevant facts in making the decision. The third is that the Minister erred in not taking into consideration relevant country information in making the decision. As I remarked earlier in these reasons, the grounds are formulaic and provide no particulars.
The written submissions handed up by the applicant this morning provide no particularity to those grounds either. It is difficult to see what facts the assessment authority ought to have taken into account that it did not take into account and what facts it did take into account which it ought not to have. There is, in my view, nothing in the assessment authority’s reasons nor anything in the court book which would suggest that the assessment authority either took into account something it ought not or did not take into account something it ought.
The assessment authority’s reasons also reveal, in my view, a thorough and careful review of the country information that the assessment authority considered. It is trite that it is a matter for the decision-maker which country information a decision-maker might take into account and what weight might be given to that country information. There is nothing apparent on the reasons of the assessment authority here to indicate that it misused in any way the country information that it chose to rely upon. Certainly nothing has been pointed to by the applicant which would make out this ground. That is, in my view, sufficient to dispose of the application.
The Minister has raised one other issue that requires some consideration. That is an issue that arises out of the decision of the Federal Court in MZAFZ v Minister for Immigration and Border Protection (2016) FCA 1081. It is a decision with which I have some familiarity because in Singh v Minister for Immigration and Border Protection (2016) FCCA 2464 I applied the reasoning in that decision to allow an application for review on the basis that the existence of a particular certificate had not been brought to the attention of the applicant in that case.
For the purposes of these proceedings, it is unnecessary to traverse much of what was said in either of those two decisions. That is so because the statutory regime which exists under Part 5 and Part 7 of the Migration Act for the review of migration decisions is a materially different regime to that which exists under Part 7AA of the Act. The heart of the matter lies in the way in which the relevant reviewing authority, be it the Tribunal or an immigration assessment authority, is required to provide procedural fairness to an applicant.
The refugee review tribunals, before they were abolished, and the migration review tribunals before they were abolished, and now the Administrative Appeals Tribunal when exercising the powers under Part 5 or Part 7 are required to accord applicants procedural fairness in accordance with those Parts. In Part 5, the relevant provisions commence with s.357A of the Act and in respect of Part 7, the relevant provisions commence with s.422B of the Act. In respect of decisions reviewable pursuant to Part 7AA of the Act, the relevant provision for present purposes is s.473DA(2).
Section 473DA contains a heading which is the same as the headings to ss. 357A and 422B, namely, “Exhaustive statement of natural justice hearing rule”. The sections, at least on their face, seem to be directed towards the same end, namely, a statement of the natural justice hearing rule that might apply in reviews under the particular part concerned. Section 473DA(2) provides:
To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
That subsection is a significant departure from the procedure that applies under Part 5 or Part 7. There is a detailed regime expanded upon in the authorities in relation to both Part 5 and Part 7 about the types of information and the circumstances in which information must be given to applicants. There is no similar statement as that which appears in s. 473DA(2) in either Part 5 or Part 7 of the Act. In my view, that of itself is sufficient to distinguish both MZAFZ and Singh v the Minister from the facts in this particular case.
Those two cases were dealing with decisions reviewable under Part 7 and Part 5 respectively, whereas the present case is a review under Part 7AA, something which is quite different and in respect of which quite different rules apply.
For all those reasons then, the application filed on 19 July 2016 must be dismissed.
RECORDED: NOT TRANSCRIBED
In respect of the question of costs, the ordinary rule is that costs ought follow the event unless there are circumstances which suggest that the usual rule should not apply.
Impecuniosity is rarely if ever seen as amounting to circumstances which would obviate the application of the usual rule. There is no reason in this case why the usual rule should not apply. Costs ought to follow the event.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 22 November, 2016.
Date: 16 December 2016
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