Bze18 v Minister for Home Affairs

[2018] FCCA 2213

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZE18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2213

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority adopted an erroneously narrow meaning of exceptional circumstances – whether the Authority erred in finding that a report was not relevant to the applicant’s claims – no jurisdictional error made out – amended application dismissed.  

Legislation:

Evidence Act 1995 (NSW)

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

Applicant: BZE18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1096 of 2018

Judgment of: Judge Street

Hearing date: 13 August 2018

Date of Last Submission: 13 August 2018

Delivered at: Sydney

Delivered on: 13 August 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu
Hodges Legal

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The amended application is dismissed.

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

DATE OF ORDERS: 13 August 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1096 of 2018

BZE18

Applicant

And

MINISTER FOR HOME 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 Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 23 March 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant claimed to fear harm from the police who have harassed him because he worked for a man named K, and K allegedly provided charitable gifts to poor people. In February 2012, the applicant alleges the police arrested him and took him to a police station and threatened him and hit him with cricket bats while questioning him about K and verbally abused him for being a Tamil and gave him a statement to sign.

3. The applicant alleges two days later the police came to the applicant’s home and took him to the police station. The applicant was again questioned and again hit with cricket bats and eventually allowed to go home.

4. The applicant alleges he was scared and did not go to work and went into hiding, and while he was away the police came to his home five or six times and asked his mother where he was. The applicant alleges the police threatened his mother that they would take the applicant’s younger brother if the applicant did no go to the police station. The applicant alleges that the police came to his home on three further occasions after he left Sri Lanka.

5. On 29 September 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

6. On 5 October 2017, the Authority wrote to the applicant informing the applicant that the application had been referred to the Authority for review. The letter explained that 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 submissions.

7. The applicant did put on submissions and new information that was considered by the Authority under s 473DC and s 473DB of the Act. Relevantly, the submissions included a statement:

   I am also instructed to forward a doctor’s report (whole body bone scan with spect/low dose CT of the hips) dated 18/07/2017 for consideration by the IAA.

8. The radiological report identified a whole body bone scan and expressed a finding that the scan was consistent with bilateral AVN of the femoral head with associated subchondral fracture, also bilateral. The report referred to a clinical assessment that the applicant had left hip, bilateral knee and left ankle pain with mildly increased CRP and some inflammatory features, possibly inflammatory arthritis. The findings identified a moderate focal hyperaemia in both hips. There was further analysis which, overall, concluded these appearances are consistent with bilateral avascular necrosis of the femoral head with associated subchondral fracture, and there was found to be no abnormal uptake associated with the knees or left ankle.

9. The Authority, in its reasons, identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority had regard to the applicant’s submission insofar as it engaged in argument in respect of the delegate’s decision.

10. The Authority identified a new claim in relation to the applicant being imputed with the Liberation Tigers of Tamil Eelam (“LTTE”) involvement/support, given that his father was killed by the army. The Authority noted the applicant has not previously claimed that he has been imputed with LTTE involvement or support, or that his father was killed by the Sri Lankan Army (“SLA”). The Authority noted the applicant’s claim he made that his father died from liver failure. The Authority identified the claim was presented with new information. Having regard to both limbs of s 473DD(b) of the Act, the Authority found that there were not exceptional circumstances to justify considering the new information.

11. The Authority then referred to a submission that the applicant should he be returned to Sri Lanka and processed “en masse” that he could be imputed with political opinion he did not hold due to one member of a group being found to be a person of interest. The Authority identified this is a claim that was not made before the delegate and was new information.

12. The Authority took into account the submissions that were advanced by reference to the DFAT report at paragraph 5.19. It is apparent from the delegate’s decision on page 10, footnote 26, that the DFAT country information report dated 24 January 2017 was before the delegate. That report was also referred to by the Authority.

13. The Authority found that it was not satisfied in respect of both limits of s 473DD of the Act, and found there were not exceptional circumstances to justify considering the new information.

14. The Authority referred to four photographs that accompanied the applicant’s submission and was not satisfied that those photographs met the requirements of s 473DD(b)(i) or (ii) of the Act.

15. The Authority referred to the radiology report summarised above and noted that this was a report accompanying the submission later on behalf of the applicant, and that no explanation had been provided as to how this report is relevant to the applicant’s claims for protection. The Authority found it is not implicit on the information before the Authority as to the relevance of the report. The Authority concluded that the report was not relevant to the applicant’s claims.

16. The Authority took into account country information and summarised the applicant’s claims and evidence.

17. The Authority identified inconsistencies and contradictions in the applicant’s evidence that the Authority did not regard to be immaterial, and found the reasons the applicant advanced as to why he was targeted by the Criminal Investigation Department (“CID”) officers to be unconvincing.

18. The Authority referred to the applicant obtaining a police clearance to travel to work in Qatar. The Authority found if the applicant had been a person of interest to the authorities, this is inconsistent with the applicant being able to obtain police clearance for the purpose of working abroad. The Authority was not convinced that the applicant feared harm from the authorities, such as to cause him to hide in his Aunt’s house as claimed, and/or that he’s a person of interest, that he would be willing to make an application for police clearance, and thus putting himself under further scrutiny.

19. The Authority identified a further inconsistency in relation to the applicant’s allegations about going into hiding. The Authority did not accept the applicant was arrested, questioned and beaten by CID officers on one or more occasions in 2012. The Authority did not accept the applicant went into hiding for fear of harm from the CID. The Authority did not accept that the applicant was a person of interest to the authorities on account of an investigation into K, and the source of his income.

20. The Authority did not accept that CID officers came in search of the applicant. The Authority did not accept, after the applicant departed Sri Lanka for Australia, he was a person of interest to CID officers or any other person for the reasons claimed.

21. Taking into account the country information, the Authority was not satisfied the applicant faces a real chance of harm in the reasonably foreseeable future as a Tamil from Colombo. The Authority found the applicant did not hold a profile that would result in any additional interrogation or be the cause for a longer than usual period of detention.

22. The Authority took into account country information in relation to the applicant’s illegal departure, and accepted that processing occurs en masse and that the applicant will be unable to leave the airport until all returnees have been processed. The Authority referred to country information that processing is carried out in accordance with standard procedures, regardless of ethnicity.

23. The Authority found that there is no evidence that the Immigrants and Emigrants Act 1948 (Sri Lanka) is applied to returnees in a discriminatory manner. The Authority was not satisfied on the evidence of the questioning, detention and the financial penalties that the applicant may face as a result of his illegal departure as discriminatory. The Authority found that they do not amount to persecution.

24. The Authority was not satisfied that the penalties and treatment the applicant may face as a consequence of his illegal departure constitutes serious harm for the applicant. The Authority found the applicant does not face a real chance of persecution for his illegal departure.

25. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and found the applicant did not meet the requirements of s 36(2)(a) of the Act.

26. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.

27. The Authority found the applicant failed to meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

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

   Ground 1

   The Authority erred by making the finding that a submission made by the applicant's representative, which clearly arose from the material before it, could not be considered because constituted new information.

   Particulars

   a. At paragraph 8, the Autho1ity referred to the applicant's submission that he would be processed 'en masse' upon return to Sri Lanka and that this could impute him with a political opinion that he did not hold.

   b. The Authority considered this to be new information since it was not raised to the delegate.

   c. At paragraph 9, the Authority reasoned that the applicant could have provided this claim about returns "en masse" earlier as the information was available prior to the delegate's decision.

   d. The applicant's submission referred to paragraph 5.19 of the 'Sri Lanka –contrary Information Report' published by the Department of Foreign Affairs and Trading (DFAT) in 2017. This report was before the delegate.

   g. The Authority erred in its findings at [CB 195, 9] - [CB 196, 11] because the applicant's submission was not a new claim that constituted new information. Rather, it was a claim that arose clearly from the materials before the delegate

   Ground 2

   1 The Authority committed jurisdictional error when disregarding the radiology report for a bone scan.

   Particulars

   a. The applicant provided a radiology report for a bone scan of the applicant [CB 196, 15].

   b. The findings in the radiology report is that the applicant has "moderate focal hyperaemia in both hips" [CB 196, 15] and [CB 185], the report further states "Scan findings are consistent with bilateral A VN of the femoral head with associated subchondral fracture (also bilateral)" [CB 185].

   c. The Authority as part of its consideration to disregard the radiology repo1t states " ... nor is it implicit on the information before me as to the relevance of the report. I am not satisfied that the bone scan has any relevance to the applicant's claim" [CB 196,15].

   d. The applicant in his statement of claims dated 23 May 2016 states "Three of the Policemen began to hit me with cricket bats. They hit me on mv backside, and the upper outer side of both my arms...”[CB 64, 89].

   e. On the basis of the claims raised by the applicant it was not open for the Authority to disregard the radiology report for a bone scan due to this document being irrelevant/ that this document did not have "any relevance to the applicant's claim".

   f. Contrary to the Authority’s reasoning it was implicit on the information before the Authority that report was relevant for the purpose of assessing the applicant’s claims.

Ground 1

1. Mr Tambimuttu, solicitor on behalf of the applicant, in support of ground 1, took the court to the DFAT Country Information Report dated 24 January 2017, and in particular paragraphs 5.19 and 5.20. Mr Tambimuttu also referred the Court to the submissions that were advanced in support of a risk of being processed en masse at page 4 of the submissions dated 22 October 2017.

2. Mr Tambimuttu submitted that the DFAT Country information report was information that was before the delegate and was information from which a claim, although not expressly made, clearly arose, being that the applicant feared harm should one member of a group of returnees who are processed en masse attract adverse attention as a result of which this could impute the applicant with an adverse political opinion. No such claim was made expressly by the applicant to the delegate.

3. Mr Tambimuttu submitted that the Authority was wrong to conclude that this claim did not arise on the material before the Authority, and that the Authority had concluded that the claim constituted new information. The content of the submission on page 4 does not support that the applicant raised a claim before the delegate that he  feared harm by reason of being imputed with a political opinion that he did not hold because of the en masse processing should one member of the group of returnees who are processed attract adverse attention. No such claim clearly arose on the material. The Authority was correct to identify the same as being new information.

4. On a fair reading of the Authority’s reason, the Authority took into account both limbs of s 473DD of the Act. On the face of the Authority’s reasons, there is no basis to conclude that the Authority adopted an erroneously narrow meaning of exceptional circumstances, nor is there any basis to conclude that the Authority approached the question in relation to credible personal information other than a preliminary assessment. No jurisdictional error arises in relation to ground 1.

Ground 2

1. In relation to ground 2, Mr Tambimuttu submitted that the Authority erred in holding that the radiologist’s report was not relevant to the applicant’s claims. This is an entirely hollow ground. Mr Tambimuttu was the author of the submissions advanced on behalf of the applicant to the Authority. Nowhere in those submissions was one word advanced to explain how the report was relevant.

2. Mr Tambimuttu drew attention to the fact that there is a reference to the report in his submissions as referred to above. That reference does not, on any basis, explain the relevance of the report. Mr Tambimuttu submitted that it could be gleaned that it would be relevant because of the applicant’s claims and, in particular, his allegation that he had been hit in February 2012 with cricket bats and the reference to having been hit on his backside and the upper outer side of both his arms. No such submission was advanced to the Authority in exercising the powers under s 473DC and s 473DD of the Act.

3. The Authority provided a logical and rational reason in support of the adverse finding, being the absence of any explanation as to how the report was relevant, and made a finding that it was not implicit on the information as to how the report was relevant. Both findings were open to the Authority and cannot be said to lack an evident and intelligible justification. The Authority’s finding that the bone scan was not relevant cannot be said to be legally unreasonable and was open to the Authority for the reasons given by the Authority.

4. Mr Tambimuttu submitted that a lower standard of relevance was appropriate for the Authority than that identified in the Evidence Act 1995 (NSW). The Evidence Act 1995 (NSW) does not apply to the determination of the administrative review that the Authority carries out and the Authority did not suggest that it did. Section 473DC of the Act permitted the Authority to get any documents or information relevantly that the Authority considers may be relevant.

5. It is apparent on a fair reading of the Authority’s reasons that the Authority found that the report did not meet the definition of new information because it was not relevant under s 473DC of the Act. That was a finding that was open to the Authority and was not the subject of any error as alleged in ground 2. The argument that there was an implicit relevance to the applicant’s claims lacks substance. The applicant’s representative, in light of the letter sent by the Authority, was clearly on notice of the criteria that had to be met in order for the Authority to consider new information.

6. There was no suggestion that the radiology report that was in existence at the time of the delegate’s decision had been provided to the delegate and no submission was advanced explaining its relevance or why it would be credible personal information, which, had it been known, may have affected the consideration of the referred applicant’s claims.

7. The reference to being instructed to put forward a doctor’s report does not assist the Authority identifying any basis upon which the requirements s 473DD of the Act could be said to be met. Nor is it a basis upon which the Authority can clearly be criticised for finding there was no explanation as to the relevance of the report and, accordingly, disregarding the same under s 473DC of the Act. No jurisdictional error as alleged in ground 2 is made out.

Conclusion

1. As the amended application does not make out any jurisdictional error, the amended application is dismissed.

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

Date: 15 November 2018