CCD16 v Minister for Immigration

[2017] FCCA 392

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 392

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Safe Haven Enterprise visa – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal failed to make relevant findings – whether the Tribunal applied an incorrect test – no jurisdictional error identified – application dismissed.

PRACTICE AND PROCEDURE – Application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused.

Legislation:

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

Cases cited:

SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64

Applicant: CCD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2044 of 2016

Judgment of: Judge Street

Hearing date: 2 March 2017

Date of Last Submission: 2 March 2017

Delivered at: Sydney

Delivered on: 2 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

By direct access

Solicitors for the Respondents:

Ms A Wong

Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2044 of 2016

CCD16

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 a decision of the Immigration Assessment Authority (“the IAA”), made on 1 July 2016, affirming a decision of a delegate made on 19 May 2016, declining to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be an ethnic Tamil of the Hindu faith and in 2006 was working for his brother’s firm, supplying non-government organisations such as World Food Program, World Vision, OXFAM and Red Cross.

Applicant’s Claims For Protection

1. The applicant was required to travel to various towns within the district, and some of those towns were controlled by the Liberation Tigers of Tamil Eelam (“the LTTE”). The applicant claims that his father was shot in 2008 because he was suspected of having links to the LTTE, and that in 2009 he took over his brother’s business, which was said to have been both lucrative and profitable.

2. The applicant claims that in 2010 four armed men came to his family home. The applicant claimed his mother spoke to the men, but did not allow him to speak to them. The men made a demand for money, because they were aware the applicant’s business was profitable.

3. The applicant claims his mother had previously seen the men and that they were from the Tamil Makkal Viduthalai Pulikal (“TMVP”) political party office. At that time, the applicant says he did not take the threat seriously because they were intoxicated. The applicant claims that two days later the same men returned to his family home. The applicant claims they physically assaulted his mother and sister, and the applicant claims that his mother told him that the men threatened to shoot him if they saw him again. The applicant claims his mother went to the police, and his mother suspected that it was due to the involvement of the TMVP Party, in respect of which the applicant claimed had close links to the Sri Lankan government.

4. The applicant claims he moved out of his house and went to a relative’s home, and the applicant claims that different men came back to the family home looking for him. The applicant claims in June 2010 he sought refuge in a particular boys’ home. The applicant claims that in September 2010 he started working as a trainee marketing executive, and that he never left the area and he did not see his family members and maintained a low profile.

5. The applicant claims that he lived in that refuge until May 2012. The applicant claims that when he was travelling to a particular town he was approached and spoken to by a man who tried to extort money from him. The applicant claims that, because it was a crowded area, the man left without harming him. The applicant claims that later that night he learnt through his mother that several armed men, one of whom identified himself as a Criminal Investigation Department (“CID) officer, came to his family home and threatened to harm his mother if she did not divulge his whereabouts. The applicant claims his sister and mother were physically assaulted. The applicant claims his mother told them of his whereabouts and that the CID came to where he was staying the following day and arrested him. The applicant alleges he was taken to the CID office in a particular town, interrogated, tortured, and accused of connections with the LTTE. The applicant claims to have several scars on his body as a result.

6. The applicant claims that the CID officers accused him of having links to a particular person who was identified as an LTTE intelligence officer. The applicant believes that the TMVP were behind his arrest. The applicant said he was detained for four days. The applicant claims that he was eventually released after his mother paid 300,000 rupees to an influential person to obtain his release. The applicant alleges that that influential person told the mother that he would not be able to save him again.

7. The applicant says that he then fled Sri Lanka illegally by boat in August 2012 and arrived an unauthorised maritime arrival on 16 August 2012.

The Delegate’s Decision

1. The delegate found that the applicant was not of any further interest to the Sri Lankan authorities after he was released in 2012, and that it was not satisfied there was a real chance of persecution of the applicant for one or more of the reasons mentioned in s.5J(1)(a) of the Act in Sri Lanka. The delegate found the applicant was not a refugee within the meaning of s.5H and that the criteria under s.36(2)(a) of the Act was not satisfied.

2. The delegate found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Sri Lanka, there is a real risk the applicant will suffer significant harm, as required by s.36(2)(aa) of the Act, and found that the applicant was not a person in respect of whom Australia had a protection obligation under s.36(2)(aa). The delegate found that the applicant was not an excluded fast track applicant.

The Authority’s Decision

1. On 23 May 2016, the applicant was informed of the referral of the matter to the Authority. The applicant was provided with information annexed to that letter which explained, amongst other things, the limited circumstances in which the Authority may conduct interviews and receive new information. Following that letter, on 15 June 2016, the applicant provided submissions and further information to the Authority.

2. The Authority, in its reasons, identified the applicant’s background and the outcome of the determination by the delegate. The Authority identified that it had regard to the material referred under s.473CB of the Act.

3. The Authority made reference to the applicant’s submissions that the applicant provided under cover letter dated 15 June 2016. The Authority found that some of the material did not constitute new information under s.473DC(1) of the Act. In respect of some certain other information, the Authority was not satisfied that there were exceptional circumstances which justified considering that new information. The Authority made reference to further details and incidents involving the applicant’s mother, but was not satisfied that the information fell within s.473DD(b)(i) or (ii) and was not satisfied there were exceptional circumstances to justify considering that information.

4. The Authority identified the applicant’s claims and evidence before the delegate as well as identifying his concerns in respect of his familial links to the LTTE, perceived wealth, employment and affiliation with NGOs, travelling to LTTE areas, alleged association with a particular intelligence officer, alleged extortion and threats from the TMVP in 2010, and the alleged arrest, detention and torture by the CID in 2012.

5. The Authority referred to the applicant’s January 2013 interview in which he been asked directly if he had been ever arrested, detained by the police or security organisations, and had stated “no”. The Authority referred to this being raised by the delegate with the applicant at the interview on the applicant’s response about the arrest. The Authority rejected the application’s contention that he was instructed to keep his answers short.

6. The applicant stated in the October 2012 interview, in answer to why he was claiming protection, that he had a lot of lorries, and a lot of armed groups were demanding money, and the applicant said he could not go to police because he had been threatened not to give any information to the police, and because they spoke three languages he could not identify. The applicant contended he was threatened in 2010. In the January 2013 interview, the applicant had raised that the reason he left Sri Lanka was because the armed groups were demanding moneys and that he could not go to the police because he could not identify the persons. The applicant confirmed that that was correct.

7. The Authority was satisfied that the applicant had been given an opportunity to explain the reason why he left Sri Lanka and had an opportunity to raise the CID arrest, torture and detention, as the interviewer specifically invited the applicant to discuss intimidation from the CID. The Authority did not accept that the applicant omitted the incident of his arrest, four-day detention and torture because he was afraid to tell the authorities, or that he was distrustful as a result of previous oppression of Tamils. The Authority took into account the alleged difficulties that the applicant may have had, but did not accept the applicant’s responses as explaining why he had not raised the CID arrest in relation to the impact on his life or the leaving Sri Lanka.

8. The Authority did not accept the proffered explanations as to why the applicant did not mention the major incident that the applicant claimed influenced him to leave Sri Lanka. Because the Authority did not accept the applicant’s explanation as to why he did not mention the arrest, detention, and torture prior to his 2013 application, the Authority was not satisfied that the CID’s interest in the applicant caused him to leave in August 2012. The Authority found that the applicant was not of any interest to the authorities after his May 2012 release, or when he departed Sri Lanka in August 2012.

9. The Authority was not satisfied that the applicant faced a real chance of harm on account of him or his family being perceived as wealthy. The Authority accepted that the applicant ran a company which delivered supplies to refugee camps and that through this work the applicant was associated or was affiliated with international NGOs. The Authority noted that the applicant was not an employee of an NGO and that, whilst the Authority accepted that the applicant was interrogated about his work and contacts in these former LTTE-controlled areas, was not satisfied that the applicant was of any continued interest on account of his role or his relationship with any NGOs or the act of delivering aid supplies following his release by the CID.

10. The Authority did not accept that the authorities in Sri Lanka continued to seek or actively monitor the applicant after he was released in May 2012. The Authority was not satisfied that the applicant faces a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race, or his Tamil race and origins from the East, or that the applicant would face persecution in the reasonably foreseeable future on account of being a Tamil of male gender, young age, or perceived wealth, or that this would elevate his profile to be of adverse interest to the Sri Lankan authorities. The Authority was not satisfied that the applicant would be perceived as an NGO worker upon return and found that the applicant was not of continuing interest for having worked with them in former LTTE controlled areas.

11. The Authority was not satisfied the applicant’s profile was such that the applicant had a well-founded fear of persecution on the basis of any imputed LTTE support or links. The Authority made reference to having found that although the applicant was previously interrogated and harmed, given that he was released after four days and was never taken to a rehabilitation camp, the Authority did not accept that the applicant was pursued after his release. The Authority was not satisfied that the Sri Lankan authorities considered the applicant to be an LTTE member, had family links to the LTTE, or to have an LTTE supporter profile.

12. The Authority made reference to acknowledging that the authorities had shown previous interest in the applicant and accepting that he had been subject to mistreatment consistent with torture in the past, but he was released after four days without charge and accordingly the Authority did not accept that he was subsequently of interest or that he was in hiding to avoid pursuit. The Authority did not accept that the potential mistreatment motivated him to leave the country. The Authority accepted that the applicant may be subject to a brief period of detention as a returnee, undergoing questioning upon return, before being released.

13. The Authority made reference to the application of the Immigration and Emigration Act 1988 (Sri Lanka) (“the I&E Act”). The Authority made reference to the DFAT information indicating that detention is not selectively applied and that the returnees are not processed in a discriminatory manner. The Authority made reference to the conditions to which the applicant may be exposed on being detained. The Authority found that the applicant, even if held over the weekend, will face a brief period of detention, but that the conditions will not be such as to rise to the level of a threat to his life or liberty or to significant harassment, or ill-treatment, or otherwise amount to serious harm.

14. The Authority found that the applicant will be issued a fine and released, but if he pleads not guilty he will be released on his own personal surety. The Authority made reference to the I&E Act being a law of general application, such that it would not ordinarily constitute persecution, because of the application of the law, and that its application does not amount to discrimination. The Authority found that the process to which the applicant would be exposed in charge, conviction, and punishment for breaching the I&E Act would be the result of a general application of the law applied to illegal departees, and does not amount to persecution for the purpose of s.5H(1) or s.5J(1) of the Act.

15. The Authority made express reference to the submissions that the applicant’s profile was elevated because he was tortured by the CID and therefore has scarring that could cause him to be imputed as an LTTE fighter. The Authority did not accept the applicant’s scars elevate his risk of profile such that he would have a real chance of harm upon return. The Authority was not satisfied the applicant would be considered to have a risk profile upon his return that required monitoring.

16. The Authority made express reference to having considered the circumstances in their totality. The Authority was not satisfied the applicant, as a relatively young, wealthy, Tamil male originating from a particular province, even with previous aid delivery work in former LTTE controlled areas where he came into contact with suspected LTTE officers, with his previous history with the authorities, and who would be returning home having been charged under the I&E Act as a failed asylum seeker, and had spent time in Australia gave rise to a well-founded fear of persecution.

17. The Authority found that the applicant did not meet the requirements of the definition of “Refugee” under s.5H(1) and that the applicant did not meet the criteria under s.36(2)(a).

18. The Authority referred to consideration of complementary protection, and in that regard the application of the I&E Act to the applicant. The Authority made reference to the applicant being questioned and detained for up to 24 hours, depending on the length of the individual investigation and the availability of a Magistrate. The Authority was not satisfied that the applicant will be subject to acts or omissions that would constitute significant harm as defined under s.36(2A) and s.5 of the Act during post-return monitoring or any brief period of detention or questioning. The Authority was not satisfied that the applicant faced a real risk of significant harm during the investigation, questioning or while held in airport detention. The Authority was not satisfied there was any reason why the applicant would not receive bail.

19. The Authority made reference to having considered conditions to which the applicant would be exposed, namely prison, while waiting to come before a Magistrate. The Authority made reference to the prison conditions: lack of resources, overcrowding and poor sanitation. The Authority found there was no evidence that the prisoners subject to short periods of detention awaiting prosecution under the I&E Act are currently or will be subject to the death penalty or otherwise arbitrarily deprived of their life or tortured.

20. The Authority found there is also no indication that the authorities or others would, through any act or omission, intentionally inflict pain or suffering such as to meet the definition of cruel or inhumane treatment or punishment, nor that they would intentionally cause extreme humiliation. The Authority found, in light of this, that it was not satisfied that the applicant would be subject to acts or omissions which would constitute significant harm as defined under s.36(2A) and s.5 of the Act during his time in detention or prison while awaiting a Magistrates Court hearing.

21. The Authority, having considered the circumstances cumulatively and considered the applicant’s profile, did not accept that the applicant’s profile was such that he would face a real risk of significant harm. The Authority did not accept that there are 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 he will suffer significant harm because of his Tamil race, because he could be perceived to hold a pro-LTTE opinion or to have LTTE links, or because he is a young, wealthy male, or being from the East, or because he left illegally and sought asylum in Australia.

22. The Authority found there were not substantial grounds for believing that as a necessary foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act, and affirmed the decision of the delegate.

Proceedings Before this Court

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

   1. The Authority's finding that the Applicant who was previously detained (CB 209; AAT at [54])well after ending of the war in 2009 failed to take into account relevant considerations / lacks logical / rational connection in its assessment whether the Applicant was at risk upon return to country of habitual residence.

   2. The Authority fell into jurisdictional error in failing to finding that the applicant would be imputed with political opinion (IAA at [17];) and / or failed to take into account claim / integer of claim and / or denied procedural fairness.

   5. The Authority committed jurisdictional error when it failed to take into account that the Applicant’s detention in poor prison conditions (IAA at [78]) would constitute persecution / complementary protection provisions and thereby applied the wrong test in relation to s 5 and s 36(2A) of the Migration Act 1958 and/or failed to address the issue of intention.

   (Errors in original).

1. Mr Kumar, of counsel, confirmed that ground 3 and ground 4 were not pressed and were abandoned. In relation to ground 1, Mr Kumar, of counsel, contended that the Authority had failed to take into account a relevant consideration, in particular that being the applicant’s involvement with NGOs.

2. It is apparent from the Authority’s reasons that the Authority did refer to the applicant’s involvement with NGOs and the Authority’s reasons both in relation to the applicant being a refugee and to complementary protection refer to having considered the applicant’s claims and evidence cumulatively. Mr Kumar submitted that the finding that the applicant did not have a well-founded fear of persecution from the circumstances of his arrest over four days’ duration, shortly before his departure from Sri Lanka, was irrational or unreasonable.

3. The Authority provided reasons in support of its adverse findings in relation to the applicant and why, notwithstanding the acceptance by the Authority of the applicant having been detained and mistreated, the Authority did not accept the applicant was of any continuing interest to the authorities. Those adverse findings were open and cannot be said to lack an evident and intelligible justification

4. Mr Kumar, of counsel, submitted that the cessation of the war three years earlier and the applicant’s involvement in supplies to NGOs meant that the Authority must have used the wrong test, or asked the wrong question in determining whether the applicant would suffer significant harm or serious harm. The submission is, in substance, an invitation to this Court to engage in impermissible merits review. This Court has no power to review the merits of the application. On the face of the Authority’s reasons, the Authority correctly identified the relevant law and there is no proper basis to conclude that the Authority asked itself a wrong question or applied the wrong test. No jurisdictional error, as alleged in ground 1, is made out.

5. In relation to ground 2, the adverse finding made by the Authority in relation to the applicant being imputed with a political opinion was open to the Authority and cannot be said to lack an evident and intelligible justification. It is clear that the Authority took into account the applicant’s fears in respect of being imputed with a pro-LTTE political opinion and made adverse findings in it respect of that claim. Mr Kumar, of counsel, submitted that there was a denial of procedural fairness because the Authority had not taken into account the applicant’s NGO activities. The Authority’s reasons reflect taking those activities into account.

6. Mr Kumar, of counsel, submitted that there was a denial in procedural fairness because the Authority had not expressly considered the discretion proposed in the Authority under s.473DC(3) of the Act. That provision provides a discretion to the Authority in relation to new information. It was apparent from the Authority’s letter acknowledging referral of the letter under Part 7AA that the Authority sent the applicant information about the limited circumstances in which new information could be adduced. The applicant did provide submissions and nowhere in those submissions was there a request for an exercise of the power under s.473DC(3).

7. Mr Kumar, of counsel, submitted that the applicant should have been put on notice in respect of the potential adverse findings, and that this constituted a denial of procedural fairness. In Part 7AA of the Act, s.473DA identifies the exhaustive nature of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. The statutory regime imposes a restraint upon the Authority in receiving new information as identified in ss.473DB, 473DC, 473DD, 473DE, and 473DF. On the face of the material before the Court, the applicant was on notice of the constrained requirements for consideration of new information in relation to the review conducted by the Authority, as a result of the communications sent to the applicant.

8. I find that the Authority complied with its statutory obligations under Part 7AA. In relation to the review, I am not satisfied that there was any denial of procedural fairness by the Authority and in the conduct of the review as alleged in ground 2. Ground 2 fails to make out any jurisdictional error.

9. In relation to ground 5 Mr Kumar, of counsel, had foreshadowed in his written submissions that he wished to advance an argument depending upon the outcome of a decision that is currently pending in the High Court from the decision of the Full Court in SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64.

10. Mr Kumar confined ground 5 to the challenge as to the meaning of ‘”intention” and “intentional infliction of harm” as addressed in that case, and did not press any other error as identified in the formulated ground 5. Mr Kumar, of counsel, sought an adjournment of the proceedings pending the determination of any appeal. In the alternative, Mr Kumar sought that the Court should reserve its decision pending the outcome of those proceedings. The adjournment was not the subject of any earlier notice; the written submissions did not foreshadow that an adjournment application would be made. The adjournment application was opposed.

11. This Court has a high volume of matters before it and vacating or adjourning matters has a significant impact on the Court’s ability to hear other matters. The existence of appellate challenge to other proceedings, which are to be relied upon as authorities, is not ordinarily a basis upon which an adjournment should be granted. Mr Kumar, of counsel, submitted that the case in the present case overlapped with the substance of the issues in SZTAL and it was, in the circumstances, a more appropriate course to adjourn the matter. Where no earlier notice of an adjournment has been given, and where the Court has fixed the matter for hearing, a belated adjournment has a real impact on the Court’s limited resources.

12. No fresh argument was developed as to why SZTAL was wrong as decided by the Full Court of the Federal Court. I am not satisfied in the circumstances of the present case that an adjournment is warranted in the interests of the administration of justice. Further, I find that in the circumstances of the present case, an adjournment would only unnecessarily add to the costs of the parties and utilise limited Court time. It is for these reasons an adjournment was refused.

13. These are not proceedings where the Court considers it is necessary to reserve its decision to determine the matter. Further, reserving a decision simply because there is another authority, the subject of appellate challenge, would give rise to the potential for considerable inefficiency and delay in the determination of matters. I am not satisfied that the interests of the administration of justice warrant this Court reserving its decision.

14. The amended application is dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  21 March 2017