Cba16 v Minister for Immigration

[2017] FCCA 248

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 248

Catchwords:

MIGRATION – Immigration Assessment Authority – Protection (Class XA) – whether the Authority complied with its statutory obligations – no material before the Court to suggest that the Authority asked the wrong questions – the Authority complied with procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473CB, 473DC, 476, Part 7AA.

Applicant: CBA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2023 of 2016

Judgment of: Judge Street

Hearing date: 15 February 2017

Date of Last Submission: 15 February 2017

Delivered at: Sydney

Delivered on: 15 February 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms N Johnson

Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2023 of 2016

CBA16

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 Act 1958 (Cth) (“the Act”) in respect of the decision of the Immigration Assessment Authority “(the Authority”) made on 23 June 2016 affirming a decision not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant claims due to civil conflict that he relocated in 1995 from Jaffna until he returned to Jaffna in 2003.

2. The applicant claims that he went to Qatar in February 2008 where he lived and worked until September 2009 and then returned to Sri Lanka. On the applicant’s evidence, the applicant departed legally from Sri Lanka and returned legally. Apart from brief visits by the applicant to India in 2009 and 2010, the applicant remained in Sri Lanka until 7 August 2012 when he departed Australia by boat. The applicant arrived in Australia on 26 August 2012. On 20 August 2013, the applicant applied for a protection visa. 

The Delegate

1. The applicant claimed to fear harm and being possibly killed by the Sri Lankan authorities if he returns to Sri Lanka because of his Tamil ethnicity, being a young man from the North, the applicant’s suspected involvement in the Liberation Tigers of Tamil Eelam (LTTE) and for travelling illegally and claiming asylum in Australia.

2. The delegate accepted that the applicant had moved from Batticaloa back to Jaffna in 2003. The delegate referred to the fact that the applicant said the police did not investigate the alleged accident that occurred in 2003 and described the applicant’s evidence was vague and evasive.

3. The applicant said that he received no further threats since 2003 and that the applicant had taken no further action as a result of the accident.  The applicant indicated that the matters arising from the vehicle accident in 2003 are resolved. The delegate accepted as plausible that during the conflict between Sri Lankan authorities and LTTE the applicant was subjected to interrogations and detained at various army camps in Jaffna.

4. In relation to the applicant’s claims that he was questioned at various times by the authorities and asked why this would be a problem, the applicant was found by the delegate to be vague and did not explain how often the applicant was questioned by Sri Lankan authorities or to what extent he was questioned. The delegate made reference to the protection interview in which it was said that what had occurred sounded like a routine inspection and not persecution. The applicant said that when he went to Jaffna and got married he has had a lot of problems.  The applicant said the problems were because the place had a large LTTE presence, when the Sri Lankan Army comes to that place all the people are considered members of the LTTE. The delegate found that the applicant was not specifically targeted for moving between Batticaloa and Jaffna. The delegate found that the applicant received no adverse attention whilst travelling in or out of Sri Lanka.

5. The delegate found there is no evidence to indicate the applicant has any connection to the LTTE or has engaged in any anti-government activities such as Tamil separatism. The delegate found the applicant has no political profile and has no connection to the LTTE and has not engaged in any Tamil separatist activities. The delegate referred to the applicant’s illegal departure from Sri Lanka on 7 August 2012. The delegate found the applicant has no political profile and no connection with the LTTE and would not be perceived as having any connection to the LTTE and has not engaged in any Tamil separatist activities.

Assessment of refugee criterion

1. The delegate found there is no evidence that the Sri Lankan authorities have suspected, or would suspect, the applicant of having associated with the LTTE and there was no evidence before the delegate to suggest that the applicant had been politically active in Sri Lanka or abroad. The delegate was not satisfied the applicant is of ongoing interest to the Sri Lankan authorities and on account of any perceived or discernible affiliation with the LTTE because of his Tamil ethnicity.

2. The delegate found that it was unlikely the applicant would be subjected to anything more than administrative screening by the Sri Lankan Immigration authorities upon the applicant’s return to Sri Lanka. The delegate referred to the fact that the applicant may be questioned and said, while that may be inconvenient, there is no evidence to indicate that there is a real chance the applicant in consideration of his profile would be seriously harmed when questioned on arrival or afterwards. The delegate was not satisfied there is a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act in the receiving country, being Sri Lanka. The delegate found the applicant is not a refugee under s.5H of the Act and that the criterion under s.36(2)(a) of the Act had not been met.

Assessment of complementary protection

1. The delegate found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka there is a real risk the applicant will suffer significant harm, as required by s.36(2)(aa) of the act. The delegate found that the applicant did not satisfy the criterion under s.36(2)(aa) of the Act. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

2. The delegate found that the applicant was not covered by paragraph (b) of the definition of “excluded fast track review applicant” in s.5(1) of the Act and was not covered by paragraph (aa) of the definition of “excluded fast track review applicant” in s.5(1) of the Act.

The Authority

1. On 5 May 2016, the Authority acknowledged that the matter was referred to it on 5 May 2016.  On 28 May 2016, the applicant provided a statutory declaration with certain information to the Authority. That statutory declaration sough to take issue with the interpreter at the departmental interview. The applicant made reference to his limited English and he said that he had communication difficulties. No particulars were given in that statement by the applicant of any particular interpretation error on any material issue on which there was a lack of understanding or inability to communicate.

2. The applicant sought to raise a new claim in relation to an alleged family connection with the LTTE. The Authority identified the outcome of the decision by the delegate and identified material referred to the Authority under s.473CB of the Act for the purpose of review under Part 7AA of the Act.

Consideration of the interpreter issue

1. The Authority records having listened to the audio recording in the interview and found that the applicant had raised no interpreting issues with the delegate at the interviews despite being informed that the applicant could so if he encountered any difficulties.

2. The Authority found that even if the applicant had felt unable to fully present his claims in the interview, the applicant had a little over three months before the decision was made, to communicate this to the delegate and did not do so. The Authority was of the view that the applicant had ample opportunity both at the interview and afterwards to raise any interpreting issues with the delegate and the Authority did not accept that the applicant was prevented from presenting his claims by the interpreter.

Consideration of the new information provided

1. The Authority referred to the new claim in respect of the applicant being associated with the LTTE and found that this constituted new information under s.473DC of the Act. The Authority was not satisfied that it was information that could not have been provided to the delegate or that there were exceptional reasons to justify considering the new information.

Consideration of the Applicant’s claims

1. The Authority identified the applicant’s claims and evidence. The Authority accepted as plausible that the applicant was involved in a vehicle accident that occurred in 2003 and found that the passage of 13 years since the event, coupled with the fact that the applicant has not resided in Batticaloa since 2003 and has not received any threats since then, is a strong indication that any interest the Tamil paramilitary group may have had in the applicant has completely dissipated. The Authority referred to the applicant’s reference to problems with the EPDP and found that those problems amounted to no more than low-level harassment and did not amount to serious harm.  The Authority considered that the applicant will not face a real chance of serious harm from the EPDP if the applicant returns to Sri Lanka.

2. The Authority accepted that since 2003 onwards, the applicant may have been requested by authorities to produce identity documents. The Authority also referred to the applicant’s claims of having been detained and said the fact that the applicant was detained and then released without any further issue indicates strongly that the Sri Lankan authorities have no ongoing interest in the applicant. The Authority referred to the applicant’s ability to travel to Qatar in 2008 and return to Sri Lanka in 2009, as well as the applicant’s capacity to depart Sri Lanka and travel to India in 2009 and 2010. The Authority found on the available evidence that Sri Lankan authorities do not have any interest in the applicant. The Authority was not satisfied the applicant faces a real chance of persecution from the Sri Lankan authorities, including the SLA as a result of any imputed involvement with the LTTE. 

3. The Authority found that in the time that the applicant has been outside Sri Lanka, there is no indication that the applicant has engaged in separatist activity or advocated Tamil separatism, or would be perceived to have done so. The Authority found taking into account the country information, the applicant will not be considered to have any actual or perceived links to the LTTE on return to Sri Lanka.  The Authority was satisfied that the applicant would not face a real chance of persecution from Sri Lankan authorities on return to Sri Lanka now or in the reasonably foreseeable future. 

4. The Authority referred to the applicant’s illegal departure from Sri Lanka and the application of the Immigrants and Emigrants Act 1949.  The Authority made reference to the likelihood that the applicant would be the subject of arrest by police at Colombo International Airport and as part of the process, most returnees will have their fingerprints taken and be photographed. In respect of the illegal departure, the Tribunal made reference to the fact that if a person pleads guilty, they will be fined and are then free to go. The Authority observed that in most cases when a returnee pleads not guilty, they are granted bail on a personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. The Authority accepted that the applicant may be subjected to interrogation and questioning by the authorities on return to Sri Lanka. The Authority noted that the applicant has not previously been politically active and has not raised any credible reasons to indicate his treatment would extend beyond that limited process.

5. The Authority noted the applicant was a passenger on a people smuggling vessel and has not claimed to have been involved in organising or facilitating people smuggling. The Authority held in these circumstances, the applicant will not be subject to any custodial sentence but that the applicant will be fined for his illegal departure, which the Authority found does not amount to serious harm.

6. The Authority accepted that there is a real chance the applicant will be detained for several hours at the airport and potentially detained on remand for a number of days pending bail. The Authority was not satisfied that the applicant faces a real chance of serious harm for his illegal departure if the applicant returns to Sri Lanka now or in the reasonably foreseeable future.

7. The Authority found the Immigrants and Emigrants Act to be a law of general application and was not discriminatory on its terms. The Authority found that the investigation, prosecution and punishment of the applicant for his illegal departure under the Immigrants and Emigrants Act would be as a result of a law of general application and does not amount to persecution for the purpose of s.5H(1) and s.5J(1) of the Act.

8. The Authority was not satisfied there is a real risk the applicant will face serious harm during the investigation process or while being held at the airport. The Authority found the applicant does not face a real chance of persecution from Sri Lankan authorities, either as a failed asylum seeker or as a returnee from a Western country or for any other reason. The Authority found the applicant did not have a well-founded fear of persecution and did not meet the criterion under s.36(2)(a) of the Act.

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

Before this Court

1. On 13 October 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant error. The Court explained to the applicant that the relevant error had to be either an excess of statutory power by the Authority or a denial of procedural fairness to the applicant. The Court explained that in summary the Court was considering whether the Authority’s decision was unlawful or unfair.

3. The Court explained to the applicant that if satisfied the Authority’s decision was affected by relevant legal error, it would set aside the decision and send it back for further hearing. The Court explained that if the Court was not satisfied the Authority’s decision was affected by relevant legal error, it would dismiss the application. The   Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. The grounds of the application are as follows:-

   1.   Identifying a wrong issue.

   2.   Asking wrong questions.

   3.   Incorrect interpretation.

5. From the bar table, the applicant sought to recount his history and what had occurred to him in Sri Lanka and his reasons for departure. The applicant raised the proposition that he had had problems with the interpreter at the time of his departmental interview. The applicant did not identify any particular or any material respect in which the interpretation by the interpreter was said to be wrong. 

Consideration

1. The Authority expressly considered whether the applicant was given a proper opportunity to raise his claims and evidence. The Authority was so satisfied, having listened to the interviews. Nothing said by the applicant from the bar table identified any material matter in which the interpreters translation was said to be the subject of any erroneous interpretation. 

2. I am not satisfied that there is any material error in the interpretation of the applicant’s claims and evidence to the Department. I am satisfied that the applicant had a real and meaningful opportunity to present his claims and evidence to the delegate. I am not satisfied that there is any jurisdictional error arising from the conduct of the Department interviews. On the material before the Court, I am satisfied that the Authority complied with its statutory obligations under Part 7AA of the Act. On the material before the Court, I am satisfied that the Authority complied with the dictates of procedural fairness in conducting the review under Part 7AA of the Act.

3. The applicant also raised from the bar table problems as a result of the divorce with his wife and mental health issues, which were not raised before the Department or the Authority.  The applicant also sought to raise issues concerning his mother’s telephone again an issue not raised before the delegate or the Authority. Nothing said by the applicant from the bar table identified any jurisdictional error by the Authority in relation to the grounds in the application.

4. The three grounds are of a generalised nature and fail to identify any proper basis upon which there could be said to be a jurisdictional error.  On the material before the Court, the Authority addressed the correct legal issues in relation to the application under review. There is no material before the Court to identify or support the proposition that the Authority asked itself the wrong questions in its review. 

5. For the reasons given, I am not satisfied that there is any material error in the interpretation of the applicant’s claims and evidence before the Department. What was said by the applicant from the bar table was in substance an invitation for this Court to engage in an impermissible merits review. This Court does not have the power to make fresh findings of fact or to make decisions based on the merits. It was a matter for the Authority to determine the merits of the application.

Conclusion

1. The application fails to make out any jurisdictional error. 

2. The application is dismissed. 

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

Date: 16 February 2017