Byi18 v Minister for Home Affairs

[2018] FCCA 2222

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYI18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2222

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visas – whether the Authority adopted an erroneously narrow meaning of exceptional circumstances – whether the Authority incorrectly applied s 473DD of the Act – no jurisdictional error made out – application dismissed.  

Legislation:

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

First Applicant:	BYI18
Second Applicant:	BYJ18
Third Applicant:	BYK18
Fourth Applicant:	BYL18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHOIRTY

File Number: SYG 1083 of 2018

Judgment of: Judge Street

Hearing date: 14 August 2018

Date of Last Submission: 14 August 2018

Delivered at: Sydney

Delivered on: 14 August 2018

REPRESENTATION

The Applicants appeared in person.

Solicitors for the Respondents: Mr T Galvin
MinterEllison

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed.

3. The first and second applicants pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1083 of 2018

BYI18

First Applicant

BYJ18

Second Applicant

BYK18

Third Applicant

BYL18

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHOIRTY

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 21 March 2018 affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise visas.

2. The applicants were found to be citizens of Sri Lanka. The first and the second applicants are husband and wife and arrived in Australia as unauthorised maritime arrivals on 26 May 2013. The third applicant was born in Australia on 9 May 2016. The two children made no claims of their own.

3. The first applicant, the husband, claimed to fear harm because the Sri Lankan authorities believed he was involved in the Liberation Tigers of Tamil Eelam (“LTTE”). The first applicant alleges his wife’s sister’s husband’s brother R was abducted in April 2012 and told his abductors he was involved with the LTTE. Both the first and second applicants feared being kidnapped on return to Sri Lanka because of this alleged LTTE connection and because of their Tamil ethnicity.

4. On 26 June 2017, the delegate found the applicants failed to meet the criteria for the grant of Safe Haven Enterprise visas. The delegate made adverse credibility findings and did not accept that the alleged person, R, implicated the first applicant as being a member or a supporter of the LTTE. The delegate did not accept the Sri Lankan authorities or any other group had any interest in the first applicant or his brother, or that the Sri Lankan authorities or any other group are looking for the first applicant or his brother, or that the first applicant and his family went into hiding after the brother’s arrest, or that the alleged arrest had any impact on the first applicant.

The Authority

1. On 30 June 2017, the Authority wrote to the applicants explaining that the application for the Safe Haven Enterprise visas had been referred to the Authority for review. The letter explained the limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction giving the applicants an opportunity to put on new information and submissions.

2. Submissions and new information were put on, on behalf of the applicants received on 4 August 2017 and were expressly referred to in the Authority’s reasons. The Authority, in its decision, identified the background to the visa application and had regard to material given to the Authority by the Secretary under s 473CB of the Act.

3. The Authority identified, so far as the submission on 4 August 2017 engaged with legal argument of the primary decision‑maker, that the Authority had regard to the same. The Authority identified that there was new information that was provided. The Authority identified that there were extracts and a number of country information articles and reports that were not before the delegate. The Authority identified, with the exception of one document from The Guardian, all the country information referred to within the body of the submission pre‑dates the delegate’s decision and it is not apparent that they are personal information. The Authority found the applicants had not satisfied the Authority that the requirements of s 473DD(b)(i) or s 473DD(b)(ii) of the Act are met in relation to that new information and declined, accordingly, to consider the same.

4. The Authority referred to The Guardian article and noted that although it was published soon after the delegate’s decision, and accordingly could not have been provided to the delegate, the applicants were represented before the Department by the same migration agent who provided post‑interview submissions in support of the applicants’ claims and within that submission included country information similar to these two articles. The Authority referred to other country information and, taking all matters into consideration, was not satisfied there were exceptional circumstances for considering this information.

5. The Authority referred to the submission containing new information in relation to claimed recent events concerning the first applicant’s brother, V, which was expanded in the statutory declaration. The Authority identified this to be new information and included a claim that the applicant husband regularly uses his Facebook account. The submission advanced that this will heighten the applicant husband’s risk profile as someone imputed with a political opinion supportive of the LTTE and would be compounding his membership of a particular social group of failed asylum seekers if returned from Australia. The Authority noted that no examples of these posts had been provided and no dates had been provided as to when the posts were made. The Authority noted from the first applicant’s protection visa interview, the first applicant admitted to posting false information about himself, including the fact that he had studied at Columbo University when he had not. The Authority was not satisfied that the requirements of s 473DD(b)(i) or s 473DD(b)(ii) of the Act are met and declined to consider the information.

6. The Authority referred to a submission that the first applicant’s statutory declaration advanced information concerning the brother V. This statutory declaration says that the first applicant spoke to his mother, who advised that his brother V had returned to Sri Lanka from Australia and that his brother and the first applicant were the subject of an inquiry by plain clothed men that came to his uncle’s house about three months ago. The men then allegedly beat the uncle and threatened to kill him unless he revealed their whereabouts, and then told the uncle that they knew V was there and would be back. The uncle telephoned V and told him not to return, and the first applicant has not had contact with his brother since he left Australia. It is alleged that his mother was told by the uncle on 3 July 2017, one week after the delegate’s decision and that the mother had not told the first applicant about V and he did not know why.

7. The Authority noted that the claimed meeting of the first applicant’s uncle and brother’s departure occurred almost three months prior to the delegate’s decision. The Authority noted the delegate questioned the first applicant in his interview about his current relationship with V and whether he was aware of Vs departure from Australia. The first applicant advised he had no contact with his brother and that he spoke to his mother on a daily basis. The Authority did not consider it plausible that the first applicant’s mother would not have passed this information on regarding her other son V, given the seriousness of the claimed events and the fact that the first applicant had applied for protection for similar reasons. The Authority also took into account the timing and the first applicant’s credibility, having been a key concern to the delegate and the first applicant not having satisfied the Authority that this is credible personal information. The Authority found the applicants had failed to meet the requirements of s 473DD(b)(i) and s 473DD(b)(ii) of the Act in respect of this new information and was further not satisfied there were exceptional circumstances to justify considering the information.

8. The Authority referred to three family photographs that were provided. The Authority was not satisfied that the photographs would have affected consideration of the claims. The Authority was not satisfied that the requirements of s 473DD(b)(i) or s 473DD(b)(ii) of the Act are met in relation to that new information and was unable to consider the same.

9. The Authority referred to the applicants having provided a scanned driver’s licence and national ID card. The Authority was of the view the document was of no probative value without translation. With regards to the driver’s licence, the Authority noted it appeared to be dated 2010 and that it is not apparent how the driver’s licence supports the applicants’ claims that R was abducted for providing accommodation or food to the LTTE, and the Authority was not satisfied that there are exceptional circumstances to justify this information.

10. The Authority summarised the first and second applicants’ claims. The Authority turned to issue of credibility concerns in respect of the applicants’ fears in respect of imputed LTTE connections. The Authority noted that the applicants presented their evidence as if reciting the content of their statutory declarations. The Authority found the evidence came across as learned or rehearsed, rather than that they were recounting from real life events that they had actually experience.

11. The Authority referred to the content of their evidence at times lacking substantive detail and both the first and second applicants seemed not capable of responding to questions which veered off script. The Authority gave an example in relation to asking the first applicant which camp the alleged brother R was held at after his abduction. The Authority referred to the response from the first applicant. The Authority noted that the delegate put to the first applicant that it seemed reasonable that if the first applicant was talking A and S, who had gone to visit R, they would tell him if they had any idea where it was he was located. The first applicant proffered an explanation. The Authority considered the first applicant’s response to being terrified and that he cut off all contact as a means by which to hide the fact and found that the first applicant he could not provide a satisfactory answer.

12. The Authority found the whole premise rather far-fetched that the applicant husband and the brother V will be of interest to the authorities, given they did not develop a relationship with R until after the second applicant’s younger sister married A, the brother of R, in either 2010 or 2011. The Authority also observed in relation to the credit assessment the issue that the abductors’ apparent lack of interest in A, who was R’s actual brother and who had lived and worked with R. The Authority found the response advanced on behalf of the first applicant does not adequately explain why A would still be of no interest to the abductors, given he had a direct family relationship with R and lived in a particular location. The Authority found parts of the claims implausible. The Authority summarised those parts.

13. The Authority referred to the applicants presenting a document that a complaint had been given to the police department about R’s abduction. The Authority provided reasons why this document contradicts the applicants’ claims. The Authority found the document appears to be the police conducting an arrest however, the applicants have all along claimed that they did not know who was responsible for R’s abduction. Given the document contradicts their claims, the Authority gave the same no weight. The Authority found the production of the document and the inconsistencies further undermined the applicants’ credibility as witnesses of truth.

14. The Authority found there are a number of inconsistencies between the oral evidence given at the protection interview with the first and second applicants. The Authority referred in that regard to the date that the alleged letter was received after R’s abduction. The Authority concluded the applicants were not reliable witnesses. The Authority found the credibility of the first applicant and his responses when presented with information that he had been caught working without work rights in Australia was also a matter of concern. The Authority found the willingness to mislead by the first applicant in that regard further impacted on the applicant husband as a witness of truth.

15. The Authority also took into account the first applicant’s admission of presenting false information on his own Facebook page and his family composition. The Authority found the first applicant’s willingness to present false information in order to advance his own interests further impacted on his credibility.

16. The Authority did accept that the applicants attempted to depart Sri Lanka by boat and that the first applicant was detained for a period of time, at the most one week, but was not satisfied the first applicant was tortured or physically harmed in any way. The Authority was not satisfied either the first and second applicants are credible witnesses. The Authority found the first and second applicants had fabricated their entire claim of R’s abduction by four men thought to be connected to the army. The Authority rejected this claim in its entirety. The Authority did not accept the first applicant and his brother V were pursued by those who abducted R or that the authorities believe that they have some connection to the LTTE. The Authority did not accept that after 10 days the applicants travelled to Negombo following the abduction four men came to their home and threatened their mothers and took photographs. The Authority was not satisfied the applicants have a well‑founded fear of harm based on the abduction of a relative some 12 years ago for unknown reasons.

17. The Authority referred to the applicants’ ethnicity, being Tamil, and noted that the applicants had made no claim to having family links to the LTTE during the conflict and did not accept that R was wanted by the authorities on LTTE suspicions. The Authority found the applicants would return to their home region, which was not a former LTTE controlled area of Sri Lanka. The Authority noted that the applicants have not claimed to have been involved with post‑conflict Tamil separatism in Australia and there is no evidence that they have been politically active in Australia. It was in these circumstances the Authority was not satisfied the applicants face a real chance of any harm because of their Tamil ethnicity.

18. The Authority was not satisfied the second, third or fourth applicants will face a real chance of harm as a consequence or that they will be without male protection on return and face a real chance of harm as a result.

19. The Authority referred to the illegal departure of the first and second applicants. The Authority identified that the first and second applicant will be interviewed and may be brought before a Magistrate, and they may be detained for a limited period of time whilst waiting for a Magistrate.

20. The Authority accepted there is a real chance the first and second applicant will be fined but found this fine could be paid off by instalments and that they would be released, or if they plead not guilty they may be detained for a brief period until one of their family members collects them. The Authority was of the view that any questioning in detention of the first and second applicants would be brief and would not, in this case, constitute serious harm. The Authority also found the imposition of a fine, surety or guarantee does not constitute serious harm.

21. The Authority was satisfied that the provisions of penalties of the Immigrants and Emigrants Act 1948 (Sri Lanka) are laws of general application applied to all Sri Lankans equally. The Authority found the law is not discriminatory on its terms and, on country information, that the law is not applied in a discriminatory manner. The Authority was not satisfied the applicants have a well‑founded fear of persecution within the meaning of s 5J of the Act because the first and second applicants departed illegally.

22. The Authority found the applicants do not have a well‑founded fear of persecution. The Authority found the applicants do not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicants fail to meet the criteria under s 36(2)(a) of the Act.

23. The Authority is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Sri Lanka from Australia, there is a real risk that the applicants will suffer significant harm. The Authority found the applicants did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 18 April 2018. On 10 May 2018, a Registrar made orders giving the applicants an opportunity to file an amended application, affidavit evidence and submissions. The applicants provided written submissions on 7 August 2018 seeking to agitate the grounds raised in the application, as well as express disagreement with the adverse credibility findings

2. At the commencement of the hearing, the Court explained to both applicants the nature of the hearing and both applicants confirmed they understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicants raised concern in relation to the Authority rejecting the new information that the applicants advanced. The applicants maintained that they would be harmed if returned to Sri Lanka and that they could not go back. The latter reflects a disagreement with the adverse findings. The applicants then applied for an adjournment in order to obtain further documentation relating to their claims.

4. The applicants provided no satisfactory explanation when asked why they had not already had an adequate opportunity to put on any relevant information, given the proceedings were commenced on 18 April 2018 and the orders made by the Registrar on 30 May 2018. The adjournment application was opposed by the first respondent. I am not satisfied that a proper basis was identified to warrant an adjournment. The Court was not satisfied an adjournment was warranted in the interest of administration of justice. It is for these reasons that the application for an adjournment was refused.

5. The applicants, from the bar table, asked the Court to have a fresh examination of the facts that the applicants had advanced. This Court does not have power to review the merits. The Court cannot make fresh findings in relation to the applicants’ claims. The Court’s powers are limited to considering whether or not the Authority complied with its statutory obligations or otherwise committed jurisdictional error. The applicants maintain that they have told the truth and that the documents they have provided were ones that the Authority should have considered. The Authority’s reasons reflect consideration of the applicants’ new information in accordance with the statutory regime and this is addressed further below.

The grounds

1. The grounds in the application are as follows:

   1. The IAA adopted an unduly narrow construction of s473DD by confining its determination of the new information to whether or not the applicant provided an explanation in accordance with the Practice Direction 1. At [6] – [11] the IAA reasoned that a failure to provide an explanation was determinative of the matters set out in s 473DD. In doing so, it constructively failed to exercise its jurisdiction under s 473DD.

   Particulars

   a. On 4 August 2017 the IAA received a submission for the applicants’ representative, a statutory declaration for the applicant husband, photographs, copies of R’s driver licence and his Sri Lankan National ID card and an article dated 18 July 2017 from the Office of the High Commission for Human Rights (OHCHR);

   b. At [5] the IAA found that the submission was legal argument refuting the delegate’s finding and was not new information but the other four documents were not before the delegate;

   c. The IAA was not satisfied that the requirements of s473DD(b)(i) or (ii) were met and also found at [7] that the applicant had admitted to posting false information about himself on Facebook;

   d. The IAA focused on the availability of the new information before the delegate made his decision, instead of whether the information was personal credible information and in doing so the IAA fell into jurisdictional error.

2. In relation to ground 1, the Authority did not reason by reference to the failure to provide an explanation as being determinative of the matters required under s 473DD of the Act. The Authority’s reasons as summarised above reflect a consideration of both limbs of s 473DD of the Act in respect of what the Authority correctly identified as new information. There is no basis for finding in the present case that the Authority adopted an erroneously narrow meaning of exceptional circumstances, nor is there any basis to find that the Authority did other than engage in a preliminary assessment in determining whether or not the new information was credible personal information.

3. There is no substance in the contention in ground 1 that the Authority failed to constructively exercise its jurisdiction. There is no substance in the proposition that the Authority incorrectly applied s 473DD of the Act in considering the new information. The adverse findings by the Authority in that regard were open to the Authority and cannot be said to be illogical or unreasonable. No jurisdictional error as alleged in ground 1 is made out.

4. For the same reasons, the applicants’ complaint orally and in their written submissions concerning the new information does not identify any jurisdictional error. In relation to the applicants’ written submissions and oral submissions complaining about the adverse credibility findings, those adverse credibility findings were not made solely on the basis of having listened to the recording and the reference to the answer appearing rehearsed.

5. The adverse findings by the Authority also took into account the lack of substance in the answers and the inability to respond to questions not the subject of the content of the statement. The adverse credibility findings also took into account the unsatisfactory and implausible answers given by the applicants as referred to above, as well as the inconsistency of the material provided by the applicants and other inconsistencies in relation to the oral evidence given at the protection interview by the first and second applicants summarised above, and the first applicant’s willingness to mislead in relation to having been caught without work rights, and also the willingness of the first applicant to present false information on his own Facebook page.

6. Those adverse credibility findings were not matters that can be said to be trivial or insignificant and were open for the reasons given by the Authority and cannot be said to lack an evident and intelligible justification. It was open to the Authority to find the applicants have fabricated their claims in relation to the alleged abduction of R. No jurisdictional error arises by reason of the applicants’ disagreement with the adverse findings in that regard.

7. The applicants’ claims that they will be the subject of harm if returned to Sri Lanka were rejected by the Authority in the adverse findings made by the Authority. The applicants’ request advanced that the first applicant would go back to Sri Lanka if the second, third and fourth applicants could remain was, in substance, an invitation to this Court to engage in impermissible merits review or to exercise the Court’s powers on a discretionary or compassionate ground. This Court has no power to decide the application on compassionate grounds or on discretionary grounds, nor can the Court revisit the merits. It does not have power to do so. Nothing said by the applicants from the bar table identified any jurisdictional error.

8. As the application and submissions fail to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 October 2018