BWE17 v Minister for Immigration and Anor

[2020] FCCA 1350

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWE17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1350

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Protection visa – whether the Authority correctly applied s 473DD of the Migration Act 1958 (Cth) – whether the Authority engaged with the applicant’s claims and evidence – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 476

Applicant: BWE17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 235 of 2017

Judgment of: Judge Street

Hearing date: 28 May 2020

Date of Last Submission: 28 May 2020

Delivered at: Sydney

Delivered on: 28 May 2020

REPRESENTATION

Solicitors for the Applicant: Mr E Rajadurai, via Microsoft Teams

Solicitors for the Respondents: Ms B Rayment Sparke Helmore, via Microsoft Teams

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. Order 1 made on 20 May 2020 is varied to permit the hearing to be by video and or audio link under Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

DATE OF ORDER: 28 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 235 of 2017

BWE17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act, made on 31 March 2017, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

3. The applicant arrived in Australia as an unauthorised maritime arrival on 18 October 2012.

4. The applicant claimed to fear harm by reason of his Tamil ethnicity and Hindu religion and by reason of an imputed association with the Liberation Tigers of Tamil Eelam (“LTTE”), and feared harm from the Sri Lankan Police Criminal Investigation Department (“CID”). 

5. On 5 October 2016, the Delegate found that the applicant failed to meet the criteria for the granting of a Protection visa.

6. The Authority wrote to the applicant on 7 October 2016 explaining that the application for the Protection visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on submissions and new information. The applicant did put on submissions, which were expressly referred to in the Authority’s reasons. 

7. The Authority identified the background to the Protection visa application and had regard to the material referred by the Secretary under s 473CB of the Act.

8. The Authority had regard to the submissions, insofar as they engaged with the Delegate’s decision, and considered the new information and whether there were exceptional circumstances to justify consideration of the same. The Authority’s reasons expressly refer to the whole of the provisions of s 473DD of the Act.

9. The Authority also took into account an updated country information report from the Department of Foreign Affairs and Trade (“DFAT”). 

10. The Authority summarised the applicant’s claims and, in the course of doing so, relevantly referred to the applicant being held for two days and beaten by CID officers when he was 15 years old. The applicant alleged that his family was displaced and lived in a refugee camp for around 12 months, and when they returned to their village their house had been bulldozed so they built a hut to live in. The applicant alleged that in 2011 the army started to harass him. The applicant alleged that he was taken to the police station twice and that he was held for about an hour and a half and the police hit him with the thick stem of a palm tree, and on the second occasion his wrist was broken by the police, and his back was injured, and he alleged that he was hospitalised for three months. The applicant also alleged that his brother was tortured and released at around the same time the applicant left hospital. The applicant alleged that the CID have come to his family home since he left Sri Lanka. 

11. The Authority summarised the relevant law, including in an annexure entitled “Applicable law”, incorporated by pagination in the Authority’s reasons. 

12. The Authority accepted that the applicant’s sisters are missing. The Authority noted the applicant had not claimed that his missing sisters had any links to the LTTE or that he fears harm in relation to the circumstances of their disappearance.

13. The Authority accepted that the applicant was held, in 2009, for two days, and his family were then in a refugee camp for 12 months. The Authority noted that, as the applicant was released after two days and not arrested or detained further, or placed in a rehabilitation camp, the Authority was satisfied that the Sri Lankan Army (“SLA”) did not consider the applicant to have links to the LTTE. 

14. The Authority accepted that the applicant’s family home was damaged by the SLA during a conflict and that the applicant was harassed by the SLA. The Authority referred to the applicant’s claims that he was twice taken to the police station in 2012, interrogated on each occasion, for an hour and a half, and beaten.

15. The Authority noted that the applicant had not produced any documentation in relation to his claim of hospitalisation. The Authority accepted that the applicant may have been injured, but did not accept as plausible that a broken wrist would require a three month hospital stay. 

16. The Authority referred to the applicant’s claims in relation to his brother being detained and released. The Authority noted that the fact that the applicant’s brother was not arrested or detained further indicates strongly that the Sri Lankan authorities had no ongoing interest in him and that he did not have any profile of concern.

17. The Authority noted that there was no evidence that the applicant was ever a member or supporter of the LTTE. The Authority accepted that the applicant may have been harassed by the SLA and questioned by the police in 2012, but took into account that he was not arrested, detained or placed on reporting conditions as a result of these incidents. The Authority found this a very strong indication that the Sri Lankan authorities did not consider that the applicant had LTTE links and had no ongoing interest in him and that the applicant did not have a profile of concern to the authorities. The Authority did not accept that, in these circumstances, the applicant’s sister would be harassed by the SLA, about the applicant’s or his brother’s purported LTTE links, or that his family would continue to be visited by the SLA since his departure.  The Authority found that the applicant does not face a real chance of harm from the Sri Lankan authorities, including the CID and the SLA, on account of any imputed links to the LTTE.

18. The Authority referred to the applicant’s ethnicity and Hindu religion and did not consider that the applicant faces a real chance of harm on the basis of being a Tamil, a Hindu Tamil or a Tamil from Sri Lanka’s north. 

19. The Authority accepted that the applicant would be returning to Sri Lanka as an asylum seeker who had left illegally. The Authority accepted that the applicant would be charged under the Sri Lankan Immigrants and Emigrants Act (“I & E Act”) and that there is a chance he will be held in detention for a short period. The Authority found that the brief period of detention does not rise to the level of threat to his life or liberty or to significant physical harassment or any other form of serious harm. 

20. The Authority referred to the applicant being required to pay a fine and was not satisfied that the payment of a fine or being held in detention for a short period, and questioned, cumulatively amounts to serious harm. 

21. The Authority found that the treatment the applicant will face as a consequence of the application of the I & E Act is not persecution within the meaning of the Act.

22. The Authority did not accept that the applicant would be imputed with separatist or anti-government dissident beliefs because of the manner of his departure from Sri Lanka or his extended residence in a western country or imputed asylum seeking here in Australia, either individually or cumulatively. The Authority found that the applicant does not face a real chance of persecution from the Sri Lankan authorities or paramilitary groups either as a returning asylum seeker from Australia.

23. The Authority found that the applicant did not meet the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

24. The Authority found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk that the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

25. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 1 May 2017. On 29 August 2017, an amended application was filed. On 27 April 2020 submissions were filed on behalf of the applicant. The submissions filed on behalf of the applicant did not address the two grounds that were identified in the amended application, but sought to advance separate arguments. The Court raised with Mr Rajadurai, the solicitor for the applicant, that the two grounds in the application did not appear to have been advanced in his written submissions. Mr Rajadurai identified that there were two grounds he wished to argue, to which the Court will return.

   The grounds

2. The grounds in the amended application are as follows:

   A. Ground 1

   The Second Respondent fell into jurisdictional error in failing to consider new information provided by the Applicant.

   Particulars

   The Second Respondent had committed jurisdictional error by adopting and applying an unduly narrow interpretation of the term "exceptional circumstances" and, accordingly, had failed to consider all the matters relevant and capable of constituting the circumstances of his case as exceptional.

   (reference made to paragraph 6, 7, and 8 of the decision IAA dated 31/3/2017).

   The IAA accepted that the information provided by the Applicant to the IAA had been "new information" (reference made to paragraph 14 of the decision of IAA dated 31/3/2017) but rejected as there was no explanations provided for the late disclosure of the new information, the IAA ( Second respondent) had limited its reasoning to the absence of exceptional circumstances, and had concluded, solely on the basis that the IAA was not satisfied that there are exceptional circumstances to justify considering the new information.

   (reference made to paragraph 6, 7 and 8 of decisions and reasons of IAA 31/3/2017)

   B. Ground 2

   1. That the decision of the Second Respondent Independent Merits Reviewer falls into an error of law. The Reviewer made facts finding error, ignored relevant material and relied on irrelevant in reaching their decision and reasons on 31 March 2017. Such an error of law is a Jurisdictional error which will invalidates decision of the Immigration Assessment Authority.

   Particulars

   a) The IAA accepted that the document "Amnesty International report dated 30 May 2016 titled 'Sri Lanka: The Right to Truth; the Right to Justice, Reparation and Non-Recurrence" is a new information but failed to take into account the relevant factors and information of the said reliable document due to the reason that the Second respondent was not satisfied in relation to the matters set out in S.473DD(b) of the Act.

   b) The Second Respondent stated that "I consider DFAT 2017 to be an authoritative source of country information. This information is not specifically about the applicant and is just about a class of persons of which the applicant is a member". The Second Respondent stated that was satisfied that there are exceptional circumstances to justify considering the new information but failed to consider or take into account the reliable and relevant information in the " Amnesty International report dated 30 May 2016 titled ' Sri Lanka: The Right to Truth; the Right to Justice, Reparation and Non-Recurrence" report.

   c) The Ministerial direction no 56 states that DFAT country information is to be taken into account only where it is relevant information, and that the decision maker is not precluded from considering other relevant information about the real situation in Sri Lanka. Further, the IAA failed to take into account that there are limitations and unavailability of in depth information in the DFAT country information of Sri Lanka.

   d) The Second Respondent also failed to consider other reliable relevant materials which was available in the year 2016 and before the date of the decision of IAA in 2017 regarding the real situation in Sri Lanka other than the DFAT Country Information 2017 report. The Second Respondent only referred to 2017 DFAT report ( at paragraph 9 at page 13) for new information regarding Tamils, persons links to the LITE and Sri Lankan citizens who departed the country illegally and sought asylum overseas. Further, stated that satisfied that there are exceptional circumstances to justify considering the new information.

   e) Further, the Second respondent relied on the article II US Department of State, Sri Lanka - country Report on Human Rights Practice 2015" only to the issue of that II In Sri Lanka do not meet international standards due to overcrowding, poor sanitary conditions and a lack of resources (paragraph 29 page 7 of the IAA decision) but failed to take into account other relevant information in the said report such as regarding Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Ground 1 of the amended application

1. In relation to ground 1 of the amended application, the Authority’s reasons reflect a real and meaningful engagement in respect of the new information and consider the same consistently with taking into account the whole of the provisions of s 473DD of the Act. Accordingly, there was no failure to consider the new information in the deliberation under s 473DD of the Act. There is no basis to find that the Authority misconstrued or misapplied s 473DD of the Act. There is no basis to find that the Authority adopted an unduly narrow or erroneous meaning of “exceptional circumstances”. Nor on a fair reading did the Authority limit its considerations so as to misapply s 473DD of the Act in its determination under that provision.

2. No jurisdictional error is made out by ground 1. 

Ground 2 of the amended application

1. In relation to ground 2, the alleged findings of fact error and the alleged failure to take into account other alleged reliable country information in substance are an invitation to engage in merits review. It is apparent that the Authority engaged in a comprehensive assessment of the applicant’s claims and made dispositive findings that were open for the reasons given by the Authority as summarised above. The adverse findings were logical and rational and not based on immaterial or trivial considerations.

2. The Amnesty International Report was new information that was not accepted as meeting the requirement of s 473DD of the Act and for the reasons already given, there was no misapplication or misconstruction of the provision. Nor was there any error by reason of finding that the DFAT report on 24 January 2017 met the requirements of s 473DD of the Act and the Authority was entitled to take the same into account as identified in the footnotes and reasoning of the Authority. On a fair reading, no relevant matter that the Authority failed to take into account has been identified. On a fair reading no irrelevant matter that the Authority took into account has been identified.

3. The Authority’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence. It is not necessary for the Authority to refer to all pieces of evidence before the Authority, and the country information upon which the Authority relies is a matter for the Authority. 

4. Ground 2 fails to make out any jurisdictional error.

Grounds advanced orally

1. The ground of alleged error that Mr Rajadurai advanced orally concerned the applicant’s claim, that was identified by the Authority in para 10, that when he was 15 years old, he was held for two days and beaten. 

2. Mr Rajadurai accepted that that incident was the incident that was being referred to by the Authority in para 15. The alleged error was that in para 15, there is no express reference to the applicant being beaten.

3. The Authority’s reasons are not to be read with a keen eye for error. It is patent that the Authority was considering the applicant’s claims in relation to the incident when he was 15 and being released after two days. The absence of the reference to the word “beaten” does not identify any failure by the Authority to have a real and meaningful engagement with the applicant’s claims.

4. Of material significance, as a matter of logic and reasonableness, was the matter identified by the Authority, that the applicant was not arrested or detained further or placed in a rehabilitation camp. It was not necessary in those circumstances for the Authority further to refer to the applicant having being beaten on that occasion, a matter that the Authority had already identified in para 10.

5. It is also apparent that the applicant had advanced a claim of being further detained in 2012, and on each occasion he was held for around an hour and a half, and was beaten. That is clearly a reference to the applicant’s dot point that was considered in para 10, to the police hitting him with the thick stem of a palm tree. The Authority, whilst accepting that the applicant’s wrist was injured, made adverse findings in respect of the alleged hospitalisation of the applicant that were open for the reasons given as summarised above. The Authority’s reasons reflect a real and meaningful engagement with the applicant’s claims and evidence.

6. No jurisdictional error, as alleged by Mr Rajadurai, in relation to the consideration of the applicant’s claims in respect of the incident when he was 15, is made out.

7. The second ground advanced by Mr Rajadurai was by reference to the applicant’s sister, who is missing, referred to in para 14, and by reference to the applicant’s brother, who was detained and then released by the SLA around the same time as the applicant was released from hospital. 

8. Mr Rajadurai suggested that there was a finding that should have been made in this regard, that the family was a family who were the subject of an imputed LTTE association and that the Authority had failed to make dispositive findings in relation to that integer of the applicant’s claims.

9. It is apparent that the Authority identified that the missing sister was not one in respect of who it was suggested that she had any links to the LTTE.  For this reason alone the second ground advanced by Mr Rajadurai must fail. 

10. Further, it is apparent that the applicant identified that he did not have any fears of harm in relation to the circumstances of his sister’s disappearance, and this is a further reason why the second ground must fail.

1. Further, it is apparent that the Authority also took into account the brother’s detention and release, and found the fact that the brother was released and not arrested or detained indicates strongly that the authorities have no ongoing interest in him and that he did not have a profile of concern. 

2. The proposition that the applicant’s family was a family of imputed LTTE links has no evidentiary basis and was not an integer of the applicant’s claims. There was no failure by the Authority to properly consider and determine the whole of the applicant’s claims. Further, the Authority made dispositive findings in respect of the whole of the applicant’s claims. This ground is, in substance, an invitation to this Court to engage in merits review. 

3. No jurisdictional error arises by reason of the second ground advanced by Mr Rajadurai.

4. As the amended application fails to make out any jurisdictional error, and as nothing said by Mr Rajadurai makes out any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 28 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 8 July 2020