CCC18 v Minister for Home Affairs
[2019] FCCA 2688
•23 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCC18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2688 |
| Catchwords: MIGRATION – Safe Haven Enterprise (Subclass 790) Visa – decision of Immigration Assessment Authority – whether failure of Secretary to refer material was a jurisdictional error – no arguable case. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.6.01, 13.03C, 16.05 Immigrants & Emigrants Act 1949 (SL) Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 5H, 36, 46A, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB |
| Cases cited: AHN17 v Minister for Immigration [2018] FCA 1598 MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 |
| Applicant: | CCC18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 218 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 11 September 2019 and 18 September 2018 |
| Date of Last Submission: | 18 September 2019 |
| Delivered at: | Perth |
| Delivered on: | 23 September 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr T Lettenmaier |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application in a case filed 7 May 2019 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 218 of 2018
| CCC18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 4 April 2018.
The IAA affirmed a decision made by a delegate of the first respondent (the “Minister”) on 16 October 2017 refusing to grant the applicant a Safe Haven Enterprise (Subclass 790) Visa (the “visa”).
This matter was first heard on 19 February 2019. On that date the application was adjourned part heard to allow the Minister to file further submissions and evidence on a point raised in its capacity as a model litigant. The Minister did so and the applicant was allowed an opportunity to respond. He did not respond.
On 10 April 2019, the matter was listed for further hearing. On that occasion, the matter having been called three times outside, the applicant did not appear. The Court dismissed the application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) and awarded the Minister his costs in the sum sought.
On 7 May 2019, the applicant filed an application in a case with supporting affidavit seeking that the orders made on 10 April 2019 be set aside pursuant to r.16.05(2)(a) of the Act.
The Minister opposes the reinstatement application.
The matter returned to the Court on 11 September 2019 for the purpose of determining whether the substantive application should be reinstated and, if necessary, to hear the parties on the substantive application.
On that occasion, the Court had concerns with the quality of the interpretive services provided to the applicant. The Court determined that it was necessary to adjourn the matter to another day to obtain the services of a different interpreter.
On 18 September 2019, the Court heard the reinstatement application. The applicant was again unrepresented but was assisted by a Tamil interpreter. The Court thanks the interpreter for her considerable assistance.
For the purposes of determining the reinstatement application, the Court has referenced:
a)the applicant’s application for judicial review filed 23 April 2018;
b)a Court Book (“CB”) of relevant documents marked as Exhibit 1;
c)a document handed up at the hearing by the applicant on 19 February 2019 marked as Exhibit 2;
d)an affidavit of Ellen Lucy Goldsworthy Tattersall affirmed 26 February 2019;
e)a further affidavit of Ellen Lucy Goldsworthy Tattersall affirmed 16 August 2019;
f)an affidavit of the applicant sworn 7 May 2019; and
g)three sets of submissions filed by the Minister dated 29 January 2019, 26 February 2019 and 16 August 2019 respectively.
The Court thanks Mr Lettenmaier, for the Minister, for the assistance he provided the Court and the applicant in ensuring that the applicant had hard copies of all of the documents.
Factual background
The factual background relevant to this matter is set out at [3]-[7] of the Minister’s submissions filed 29 January 2019. Those submissions are also supplemented at [8]-[27] in the Minister’s submissions dated 26 February 2019.
Those submissions are detailed. They are accurate and not argumentative. The Court adopts them as its own. They provide as follows.
The applicant, a citizen of Sri Lanka, arrived on Cocos Island as an unauthorised maritime arrival on 3 September 2012 (CB 122). He was subsequently transferred to Nauru.
On 27 November 2012, the applicant was interviewed on Nauru concerning his claims for refugee status (the “Nauru Interview”) (CB 1). On 29 November 2012, the applicant, the interviewer and an interpreter signed a 15 page document (the “Nauru Interview Document”) headed “Transferee Interview” (CB 15).
The following features of the Nauru Interview Document are noteworthy:
a)Part B of the Nauru Interview Document deals with the identity of the applicant, his family, residential history, education and how he came to arrive at Cocos Island (CB 2-10); and
b)Part C of the Nauru Interview Document deals with the reasons why the applicant left Sri Lanka (CB 11 at [1]).
The applicant was later transferred to Australia.
On 28 July 2016, the Department advised the applicant that the Minister had lifted the bar pursuant to s.46A of the Act and invited the applicant to apply for the visa (CB 16-17).
On 25 May 2017, the applicant applied for the visa (CB 23-75).
The applicant’s claims were set out in a statement accompanying the visa application (the “Statutory Declaration”) (CB 24-30). Submissions and a further statement were provided on 1 August 2017 (CB 93-118).
The applicant’s claims can be summarised as follows:
a)he is a Tamil and Hindu who was born in India. He returned with his family to Sri Lanka in about 1989;
b)the police frequently came to their home and questioned his father about any security incidents, including incidents where the Liberation Tigers of Tamil Eelam (“LTTE”) attacked the Colombo airport in 2001;
c)in 2008, the Sri Lankan Army (“SLA”) questioned the applicant about a childhood scar on his chest and accused him of being an LTTE combatant;
d)in 2009, the applicant and his friends were approached by campaign scouts for the local Sri Lankan Freedom Party (“SLFP”) candidate, Raja, and told to help with Raja’s campaign in the local elections. The applicant was given election materials but did not do anything asked of him and hid in a neighbouring village for two days;
e)back in his village the applicant used different routes to work for about five months to avoid the SLFP campaigners but was stopped by them in September 2009. They threatened his safety if he did not help Raja;
f)the applicant hid in Gampola for ten months before leaving to work in Qatar in 2010. He returned from Qatar on 6 August 2012. Two days later, two of Raja’s supporters recognised the applicant and threatened him;
g)the applicant and his parents were afraid for his safety and made arrangements for the applicant to leave Sri Lanka;
h)the Sri Lankan Government suspects all Tamils who left the country during or after the war in 2009 of working for the LTTE resurgence. The Sri Lanka Government is corrupt and will not protect Tamil human rights;
i)the Sri Lankan Government and the Criminal Investigation Department would know that he departed unlawfully and that he was a failed asylum seeker from a Western country. He would be targeted for arrest or detention on return; and
j)his personal information was leaked to the public in the data breach by the Department.
(CB 24-30 and 93-118)
In his Statutory Declaration, the applicant referred to the Nauru Interview and asserted that he was not made aware before or during the interview that the information he provided during that interview would be used for the purpose of assessing his protection claims (CB 25 at [2]). The applicant complained that, due to interpretation difficulties, he felt that he could not make himself properly understood at the Nauru Interview (CB 25 at [3]).
On 1 August 2017, the applicant’s migration agent sent a written submission to the delegate in support of the visa application (CB 93-117). That submission relevantly:
a)stated that the applicant relied on the protection claims set out in the Statutory Declaration;
b)restated the protection claims set out in the Statutory Declaration;
c)referred to “country information”, rather than to the applicant’s particular case; and
d)contained no direct reference to the Nauru Interview Document.
On 7 August 2017, the applicant attended an interview with a delegate (CB 91-92). On 16 October 2017, the delegate refused to grant the applicant the visa (CB 122-136).
On 17 October 2017, the decision was referred to the IAA for review under pt.7AA of the Act (CB 138). The Secretary did not send the Nauru Interview Document to the IAA, although it appears that the Department was in possession of the Nauru Interview Document. No submissions from the applicant were received by the IAA.
On 4 April 2018, the IAA affirmed the delegate’s decision on review (CB 142-154).
IAA’s Decision
It is not disputed that the applicant here satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error as the Act is unusually rigid and strictly limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. An applicant may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions in s.473DD are met. For the purpose of these proceedings, s.473DD is not relevant.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The Court notes the Ministers written summary of the IAA’s decision in his written submissions at [8]-[22]. The Court has cross checked all references and adopts the summary provided as its own. It provides as follows.
The IAA had regard to the material referred by the Secretary under s.473CB of the Act and noted that no further information had been obtained or received (CB 143 at [3]-[4]).
The IAA noted the anomaly between the applicant’s evidence about his birth place (he claimed to have been born in a refugee camp in India), and the Sri Lankan identity documents provided (which said that he was born in Sri Lanka). Like the delegate, the IAA accepted the applicant’s explanation for this and found the applicant’s identity was as claimed (CB 144 at [8]).
Having regard to the applicant’s claims, as well as relevant country information, the IAA found that neither the applicant nor any of his family had any association with the LTTE (CB 145 at [9]).
Referring to country information, the IAA accepted that, at times during the war, the applicant and his family were affected by security searches and questioning about LTTE activities because of their ethnicity (CB 145 at [10]). The IAA found, however, that the fact that the applicant had been issued with a Sri Lankan passport in 2007, with which he travelled to Qatar in 2010 and returned to Sri Lanka in 2012 with no issue, was indicative that he was of no adverse interest to the authorities (CB 145 at [10]). On this basis, the IAA did not accept the applicant’s claim that all Tamils who departed Sri Lanka during or after the war in 2009 were treated with elevated suspicion as upon return (CB 145 at [10]). The IAA found that neither the applicant nor any of his family members were then, or were currently, of any concern to the authorities as having any LTTE or separatist connections (CB 145 at [10]).
The applicant claimed the authorities might connect him to the LTTE because of the scar on his chest. The IAA considered that there was no credible evidence before it that the Sri Lankan authorities were aware of the applicant’s scar and, relying on country information, the IAA found that the scar did not give rise to a real chance of harm for the applicant (CB 145-146 at [11]).
Having considered the applicant’s particular circumstances, the IAA found that the country information indicated that merely being a Tamil did not, of itself, warrant international protection as a refugee without additionally having or being perceived to have had a significant role in the LTTE, or post-conflict Tamil separatism (CB 146 at [12]). The IAA found that the applicant had not had, nor would he be imputed to have had, any LTTE or a separatist profile by the Sri Lankan authorities, and, as a result, was not at risk of harm for this reason (CB 146 and 149-150 at [12] and [20]).
In relation to the applicant’s claim that Tamils suffered ongoing persecution and that he was targeted by Raja’s supporters in 2009 because he was a Tamil, the IAA noted the absence of country information regarding any local election at that time. The IAA also found that the applicant’s evidence about his interactions with the SLFP supporters and this election was not convincing and contained a number of inconsistencies (CB 146-147 at [13]). On this basis, the IAA did not accept that the applicant was asked to support Raja or the SLFP in 2009, did not accept that any SLFP supporters were then, or were currently, threatening the applicant, and did not accept that after the applicant returned from Qatar any SLFP supporters threatened him in any way (CB 146-147 at [13]-[14]).
The IAA noted that the applicant’s family still lived in Sri Lanka, his father still carried on a business in Negombo and the applicant was unable to give any evidence of harassment or discrimination faced by his family for being Tamils or Hindu (CB 147 and 148-149 at [15] and [18]). The IAA also noted that there was no evidence before it that the applicant’s family had been the subject of any land seizure (CB 148 at [17]).
Referring to country information, and to its finding that the applicant had not been involved in any LTTE or political activism or had any profile indicating as much, the IAA found that the applicant did not face a real chance of harm on the basis of his history or as a male Tamil Hindu from Negombo with some childhood scarring (CB 149-150 at [20]).
The IAA accepted that the applicant would be considered by the authorities as having departed illegally and would be investigated under the Immigrants and Emigrants Act 1949 (the “I & E Act”) (CB 150 at [21]). The IAA accepted that the applicant might be detained and questioned at the airport for up to 24 hours, face a fine for breaching the I & E Act, and, depending on the availability of a Magistrate, or if a family member was required to provide surety, may be held in prison (CB 150 at [23]-[24]). The IAA was satisfied that a family member would be able to act as a bail guarantor if required (CB 150-151 at [24]-[25]), and that any detention, questioning, poor prison conditions or surety or fine imposed would amount to serious harm (CB 151 at [26]). In any event, the IAA found that any investigation, prosecution or punishment under the I & E Act would be the result of the application of a law of general application and would not amount to persecution (CB 151 at [27]).
The IAA accepted that the applicant could be considered by the authorities to be a former asylum seeker from a western country; however, having regard to its anterior factual findings as well as country information, the IAA was not satisfied that the applicant would be at risk of adverse attention nor a real chance of harm from the Sri Lankan authorities on return (CB 151-152 at [28]-[29]).
The IAA accepted that the applicant’s information had been released in the 2014 data breach (CB 152 at [30]) and that, because of this and his potential forced removal back to Sri Lanka, the authorities could infer that he had spent time and sought asylum in Australia (CB 152 at [31]). However, the IAA was not satisfied that there was a real chance the applicant would suffer harm as a result (CB 152 at [31]).
The IAA found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act, and accordingly that he did not meet s.36(2)(a) of the Act (CB 152 at [32]).
In considering the applicant’s claims under the complementary protection provisions, the IAA relied on its anterior findings to conclude that the applicant did not face significant harm as a result of his ethnicity, religion, scarring, as a failed asylum seeker who has spent time overseas, or the data breach. The IAA otherwise found that any investigation and detention at the airport, detention pending bail or imposition of a fine would not amount to significant harm. Overall, the IAA concluded that the applicant was not owed complementary protection (CB 153 at [35]-[37]).
The IAA found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm.
Accordingly, the IAA found that the applicant did not meet s.36(2)(aa) of the Act (CB 153 at [38])
Proceedings in this Court
At the first hearing, the applicant made no submissions in respect of his substantive application. He did, however, hand up a document he called “submissions” which the Court marked as Exhibit 2.
During the course of the first hearing, the Minister drew the Court’s attention to a potential issue. The Court asked the Minister to reduce his submissions on this point to writing to enable the applicant an opportunity to better understand and seek advice if he chose to do so. The matter was adjourned to 10 April 2019.
While the Minister filed submissions on 26 February 2019, the applicant did not file anything in reply.
The matter was listed at 2.15pm on 10 April 2019.
On 2 April 2019, the Court was required to move the matter forward so that it would commence at 10.15am on 10 April 2019.
The applicant was advised of this time change by email to his nominated email address.
As noted, the applicant failed to appear at the hearing on 10 April 2019 at 10.15am. The Court, being satisfied the applicant was correctly notified, dismissed the application for non-appearance under r.13.03C(1)(c) of the Rules.
Reinstatement Application
On 7 May 2019, the applicant made on application for reinstatement. The applicant sought an order that “my case be hear before the Federal Circuit Court.”
The Court understands this to be an application pursuant to r.16.05(a) of the Rules which allows the Court to set aside an order if it is made in the absence of a party.
In his affidavit affirmed 7 May 2019, the applicant states as follows:
1. I am the Applicant in case CCC 18 v Minister for Home Affairs & ANOR
2. I was intimated by letter that my case will be heard on 10th APRIL 2019 at 10.15am.
3.I lodged this date in my diary and was sure that my case will be heard on this date.
4. However my case was heard on the 10th of April 2019 at 2.15PM and dismissed as I was not present.
5. I examined my mobile telephone thereafter and found the case had been advanced.
6. To date I did not receive a letter indicating the new date for the hearing.
7. I am not proficient in the English language and as I get a number of SMS messages on my mobile I rarely read through them.
8. While I admit that this was a mistake on my part I had no intention to refrain from appearing before Court.
9. I have a well-founded fear of retuning to Sri Lanka as I will be a victim of a perceived link with the LTTE that fought for an independent state in Sri Lanka.
10. The Second Respondent did not adequately examine the evidence that I placed and thereby made a jurisdictional error.
(Without alteration)
If the Court considers it is in the interests of the administration of justice, the Court will exercise the discretion to set aside the orders it has made in the absence of a party.
In MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530, Ryan J at [7] identified three relevant considerations for the Court to consider when determining if it is in the interests of the administration of justice to reinstate. Those considerations are:
a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
b)the existence and nature of any prejudice which might flow to the Minister from reinstatement, and the extent, if any, to which that prejudice can be mitigated by other relief such as costs; and
c)whether the applicant has a reasonably arguable prospect of success on the substantive application.
The Court is not confined to these factors. It is, ultimately, a discretionary matter for the Court to determine if it should reinstate the application and the Court must do so with regard to the particular factual circumstances of the case before it.
For the reasons that follow, the Court is not satisfied that the application should be reinstated.
Consideration
Explanation
The applicant appears to concede in his affidavit that his non-appearance was his own fault. It appears he was confused about the time of his hearing.
The Minister submitted that the applicant had not provided an adequate explanation. The Minister highlighted:
a)the applicant contends that his non-attendance was because he did not receive notification that the hearing time had changed, suggesting that this was because he does not read SMS messages. However, the Court notified both parties that the hearing time had changed from 2:15pm to 10:15am;
b)the email address used by the Court was that set out in the applicant’s substantive application. The notice was sent by email, hence the applicant’s reticence at reading SMS messages does not explain his non-attendance.
c)the applicant’s evidence indicates he had recorded the correct time, being 10:15am, and still failed to attend. However, even if the applicant had intended to say he diarised the hearing at 2:15pm, there is no evidence he attended the Court at that time in any event;
d)the applicant has not adequately explained the nearly month delay in applying for reinstatement; and
e)in those circumstances, and given it was the applicant’s responsibility to ensure he attended the hearing, there has been no reasonable explanation for non-attendance and this should weigh against reinstatement.
To the extent that the applicant complains he did not receive notification of the change in hearing time, the Court is satisfied that the applicant was given notice that the hearing time had been moved to 10.15am. The applicant was advised one week prior to the scheduled hearing. This notice was sent to the applicant’s nominated email account. Having provided that address for correspondence, the applicant agreed to receive any correspondence and documents via email. The applicant can therefore be taken to have been notified of the hearing: FCC Rules, r.6.01(6).
In circumstances where the applicant seems to have conceded that it was his oversight (i.e., his inadvertence or negligence to ensure he was fully aware of his proceedings) that caused him not to attend the hearing, the Court does not find that this is a sufficient explanation for his non-attendance.
The Court notes that the Minister refers to the lack of explanation for the month long delay in filing an application for reinstatement. At hearing, the applicant explained the delay. He said he had sought assistance from a lawyer who did not respond and he then went to the Tamil Association who assisted him. The Minister indicated at hearing that he accepted that the delay in filing the application for reinstatement was sound.
Overall, in all of the circumstances, the Court finds that the explanation for the applicant’s non-appearance does not favour reinstating the application.
Prejudice
The Minister conceded that the Minister would suffer limited prejudice if the matter were reinstated: AHN17 v Minister for Immigration [2018] FCA 1598 at [42]. This weighs in favour of reinstating the substantive application.
Merits
In CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 at [4]-[6], Justice Mortimer, in the context of considering the merits of an application for reinstatement, explained as follow:
4. … The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
5. However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.
6. The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.
To determine whether the substantive application has merit, the Court must thus assess whether any grounds of review articulated by the applicant are arguable.
As indicated, the applicant filed his application in this Court on 23 April 2018. The applicant alleges jurisdictional error on the part of the IAA as follows:
1.Jurisdictional error.
2.Bias based on conscious or unconscious prejudice by ignoring relevant materials.
3.Identifying a wrong issue on a wrong question.
The grounds of review in the substantive application are not particularised and perhaps best described as vague. It is noted, however, that at the hearing on 19 February 2019, the applicant handed up “submissions” which were marked as Exhibit 2. Those submissions provide as follows:
1. I am the applicant CCC18 v Minister for Home Affairs & ANOR
2. I have a well-founded fear of returning to Sri Lanka for the following reasons:
a. I fear that I will not have the protection of the police in Sri Lanka as they are subject to political influence and I fear that my political enemies will use them to harass me.
b. This fact stated above is made easier as I am an ethnic Tamil and has been perceived to have links with the LTTE that fought an independent state in Sri Lanka.
c. The Sri Lankan government uses the Prevention of Terrorism Act to arrest and detain Tamils and I fear that I will be a victim of this law.
d. The Second Respondent did not adequately examine the evidence I placed in this regard.
e. The Second Respondent in doing his duties did not give me procedural fairness or examine the situation in Sri Lanka when I fled and sought refuge in Australia.
f. Due to the facts stated above there was jurisdictional error and I seek a new inquiry into my application for a fresh inquiry to determine the merits of giving me a Protection Visa to remain in Australia.
In line with the decision of Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8], the Court gave the applicant an opportunity to further outline orally why he feels his substantive application has merit and explain in his own words what he feels the IAA “did wrong”.
To assist the applicant, it was explained to him that the categories of jurisdictional error are not exhaustive and may sometimes overlap and that for migration decisions of this sort they most commonly include the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
To the extent that anything presented in writing or orally to the Court points to a ground of review, or particulars, the Court has considered them in determining if there is merit in reinstating the application.
Ground 1 and Exhibit 2
In respect of ground 1 (which simply reads: “Jurisdictional error”), the Court notes that a broad assertion of this sort is, in effect, meaningless. On one level, what the applicant is asking the Court to undertake is a “fishing expedition” with the hope the Court will identify an error of some sort.
When considering this ground, the Court has, however, taken into account each of the sub-paragraphs of Exhibit 2.
In respect of [2(a)-(b)], these fail at a factual level.
First, the applicant’s own evidence was that he had not engaged in any political activism or been a member of any political groups (see [9]).
Second, the IAA rejected the claim that that the applicant had any “political enemies” or was targeted or threatened by any political campaigners (see [13]-[14]).
Third, the IAA did not accept that the applicant had been or would be imputed with an LTTE profile (see [12]).
Paragraphs [2(a)-(b)] do not identify any error.
Paragraphs [2(c)-(d)] refer to the Prevention of Terrorism Act 1978 (SL) (the “PTA”).
The IAA expressly acknowledged that the applicant had made a claim in this regard (at [5], final dot point). The applicant’s representative’s submissions provided information specific to this issue (CB 101-104). The IAA expressly acknowledge the submissions and information at [16] and noted other country information sources which also concerned the PTA. At [19], the IAA again referred to the submissions and noted that the vast majority of arrests, detention and torture by police and security forces appeared to concern persons with LTTE connections (something the IAA rejected the applicant here had). Finally, at [22] the IAA noted that there was credible (but unverified) information that no returnees from Australia had been charged under the PTA.
The IAA adequately considered the applicant’s claim to fear harm as a victim of the PTA. The IAA referred to the information the applicant’s representative had provided. At [16] and [19]-[20], the IAA addressed these claims and ultimately, at [29], concluded that the applicant had no profile that would result in him having a real chance of harm from the authorities immediately on return to Sri Lanka, and otherwise on return to his home area.
Paragraphs [2(c)-(d)], accordingly, are without merit.
Paragraph [2(e)] makes two contentions.
The first is that the applicant was denied procedural fairness.
Having reviewed the decision, the Court is not satisfied anything arises on the face of the decision to suggest the IAA has not adhered to (albeit restrictive) natural justice requirements provided in div.3 of pt.7AA of the Act.
Here, the IAA conducted the review on the papers (as it was required to do) and there was nothing to warrant the exercise of any discretion, or the consideration of exercising any discretion, such that any notion of unreasonableness must be considered.
The second contention, that the IAA was required to consider the situation in Sri Lanka when the applicant fled, is misguided.
The IAA was not required to examine the situation in Sri Lanka when the applicant fled: Minister for Immigration & Ethnic Affairs v Singh (1997) 72 FCR 288. The IAA was required to examine the situation in Sri Lanka in the “reasonably foreseeable future”. While the IAA can use the applicant’s experiences in the past to inform the consideration of the future risk, an applicant is not afforded refugee status or complementary protection because of what has occurred in the past. It is what might occur in the future that matters.
Paragraph [2(e)] is, accordingly, without merit.
Paragraph [2(f)] relies on the success of the other matters raised in [2(a)-(e)]. Those matters having been assessed and dismissed above. It thus follows that this sub-paragraph cannot be successful.
Exhibit 2 largely cavils with the merits of the IAA’s decision and is without merit.
The Court has otherwise reviewed the IAA’s decision for any error on the face of the decision and is not satisfied that any arises. Here:
a)the correct legal principles were summarised and the language of those provisions was used throughout the IAA’s decision; and
b)there was nothing on the face of the IAA’s decision and findings to suggest a conclusion was illogical or not open to be made.
Ground 1, without particulars, has no merit.
Ground 2
Ground 2 alleges “bias based on conscious or unconscious prejudice by ignoring relevant materials”.
Although not entirely clear, it is arguable that the applicant here is asserting that the IAA was biased and/or that the IAA ignored relevant material.
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
a)the IAA, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the IAA, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the IAA had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
The applicant here did not point to anything that might evidence bias.
On the evidence before the Court it cannot be said that the IAA acted subjectively or without an impartial mind. Rather, a close reading of the decision as a whole indicates that the IAA undertook a forensic analysis of the materials before it. There is nothing to indicate any pre-judgment on the part of the IAA. Rather, the IAA independently assessed the applicant’s claims and the information it had before it
The Court has also considered, noting recent Federal Court authority in AZZ18 v Minister for Home Affairs [2019] FCA 844, whether there was any particular information that was before the IAA which could give rise to a reasonable apprehension on the part of a fair‑minded and fully informed lay observer that any information before the IAA was “prejudicial” to the applicant, thus raising concerns that the IAA may have subconsciously formed an adverse view about the applicant. There is no such information in this case.
In relation to the suggestion that the IAA ignored relevant material, the Court notes the applicant did not provide any further materials or evidence and the IAA referred to information sources that the applicant had relied upon in his submissions to the delegate (CB 94-117 and CB 149 at fn.43).
In his oral submissions to the Court on 18 September 2019 (which, unfortunately, were very unclear and confusing – despite the best efforts of both the Court and Mr Lettenmaier to assist the applicant), the applicant attempted to identify materials that he believes the IAA “ignored” or should have looked at. He seemed to suggest that what had been discussed at his “interview” was not considered by the IAA.
It is unclear to the Court whether the applicant was suggesting that the audio of the Nauru Interview should have been sent to the IAA or whether the audio of his arrival interview should have been sent and referenced.
It is not disputed that neither were before the IAA. They did not form part of the “review material” provided to the IAA.
The question arising here from this omission was whether this was an error as per s.473CB of the Act.
In answering this question, the Minister had regard to the decision in BLA16 v Minister for Immigration & Border Protection [2019] FCA 748 (“BLA16”).
In relation to the Nauru Interview Document, while not on all fours with the circumstances in this case, the principles outlined in BLA16 in relation to s.473CB of the Act are applicable to the facts that arise here.
In BLA16, the Court considered whether the fact that the Secretary had not forwarded to the IAA an earlier statutory declaration accompanying an invalid application was a breach of s.473CB and material to the outcome.
The applicant in BLA16 argued that that the earlier statutory declaration was “self-evidently material” to the IAA’s review. The Court disagreed, holding that it was not an error for the Secretary not to refer the document to the IAA because:
a)the earlier statutory declaration was contained in a different departmental file which meant that it could not be said the Secretary was aware of the document (as it did not accompany the valid visa application);
b)at no time did the applicant in that case rely upon the earlier statutory declaration in support of the valid visa application;
c)the Secretary was entitled to proceed on the assumption that the applicant had and did include all of the claims for protection that he relied upon in making the valid visa application; and
d)the substance of the earlier statutory declaration was of a similar nature to the later statement of claims the applicant provided in support of the valid application.
Here, for similar reasons as those articulated in BLA16, there has been no breach of s.473CB of the Act in relation to the Nauru Interview Document because:
a)the Nauru Interview Document (which was not sent to the IAA) was a document that the applicant himself had questioned the reliability of and disavowed any reliance upon (CB 25-26);
b)the Nauru Interview Document was contained in a different Department file (CF2012/183227) to the other materials before the delegate (BCC2016/2439782): Ms Tattersall’s 26 February Affidavit, p.9 and CB 80. Having expressly disavowed reliance on the Nauru Interview Document, it was reasonable for the Secretary not to have searched for it or sought to obtain it and proceed on the basis that all of the relevant protection claims were in the application as provided;
c)the substance of the Nauru Interview Document was, in effect, repeated with greater specificity in the statutory declaration that the applicant himself provided in support of the visa application. Hence, it cannot be said the failure to provide the Nauru Interview Document was material; and
d)the applicant was required to place before the IAA the claims and evidence that he wanted to be considered. He could have provided the Nauru Interview Document if he wished as his agent was provided a copy (Ms Tattersall’s 26 February 2019 Affidavit), but he clearly did not want the document considered and the Secretary ceded to this request (CB 25-26).
To the extent that the applicant claims that an audio recording of his arrival interview should have been sent to the IAA and referenced, there was no audio available: Ms Tattersall’s 26 February 2019 Affidavit. The applicant was made aware of this. Hence, to the extent that there were matters in that interview that he wanted addressed, he was on notice that he should provide those to the IAA as the IAA could not have had the audio.
To the extent that the applicant is suggesting that the IAA did not invite him to an interview, the IAA was not required to do so: s.473DB.
The applicant also submitted that he had information he wanted to provide the IAA but that he was not able to do so in the prescribed time period. Unfortunately, the fact that the applicant could not provide documents on time does not evidence any error in the IAA’s decision.
Finally, the applicant appeared to refer to an interview where a large amount of time was focussed on where the applicant was born (whether it was India or Sri Lanka). It appears this occurred at the delegate’s interview as a large portion of the delegate’s decision referred to this matter (CB 123-124).
To the extent the applicant was suggesting that he was not able to fully articulate his claims at the interview with the delegate because the delegate focussed on matters concerning where he was born, the Court does not accept this assertion. The IAA’s decision makes a number of references to the applicant’s evidence as given at the interview with the delegate (see, [9], [11], [13] and [30]). The IAA records the applicant’s responses to questions at the interview – responses that were directed to the substance of his claims for protection. The Court is satisfied that the applicant had ample opportunity to explore his claims at the interview with the delegate and provide any details he should be assessed.
Nothing of merit arises in relation to the applicant’s submissions in this regard.
Ground 3
Ground 3 asserts that the IAA identified a “wrong issue on a wrong question.” Unfortunately, the applicant did not identify what that “wrong issue” was addressed or what “wrong questions” were asked.
It is clear that the IAA asked itself the correct questions: i.e., whether the applicant had a well-founded fear of persecution or whether there was a real risk of significant harm if he were returned to Sri Lanka.
The IAA correctly summarised the principles relevant to determinations of this sort and undertook a detailed consideration of the applicant’s claims and the evidence and information it had before it to determine whether the applicant satisfied the criterion for the visa.
Overall, having assessed all of the information before it, the IAA was not satisfied that the applicant satisfied the relevant criterion. That was a finding that was entirely open to the IAA.
Ground 3 is without merit.
Conclusion
The Court is not satisfied that it is in the interests of the administration of justice or appropriate to set aside the orders made on 10 April 2019.
While the explanation provided by the application for his non-appearance weighs in favour of granting the extension, the Court is satisfied that there is no merit in the substantive application as framed. There is, accordingly, no benefit in the Court proceeding to a full hearing of the matter.
The application in a case filed 7 May 2019 seeking for reinstatement under r.16.05 of the Rules is dismissed.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 23 September 2019
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