CCQ17 v Minister for Immigration
[2018] FCCA 244
•5 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCQ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 244 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – the Authority considered the applicant’s claims in relation to suspicions of being involved with the LTTE – the adverse findings made by the Tribunal cannot be said to be unreasonable or illogical – there was no denial of natural justice by the Authority taking into account more recent country information – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 476 |
| Applicant: | CCQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1518 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 5 February 2018 |
| Date of Last Submission: | 5 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2018 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Mr A Keevers Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1518 of 2017
| CCQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 20 April 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 13 October 2012 as an unauthorised maritime arrival. The applicant was found to be a Tamil from the Northern Province of Sri Lanka and made an application for the Safe Haven Enterprise visa on 18 April 2016.
The delegate’s decision
On 4 October 2016, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Act. In relation to credibility findings, the delegate expressly referred to the applicant not providing evidence in support of his claim concerning the death of a friend, S. The delegate identified inconsistencies in the applicant’s residential history in Sri Lanka before his departure and that the applicant had failed to provide a reasonable response in relation to those inconsistencies and was found to have embellished his claims to advance his Protection visa application.
The delegate made adverse credibility findings and did not accept the applicant was pursued by the Eelam Peoples Democratic Party (“EPDP”) and the authorities after his friend S died in 2010. The Authority did not accept the applicant was in hiding soon after S was killed in 2010 until he came to Australia.
The applicant claimed that between 2004 and 2007, plainclothes men beat the applicant approximately on seven to ten occasions because he was suspected of being a Liberation Tigers of Tamil Eelam (“LTTE”) supporter. The applicant alleged that in 2006, his family area was under the control of the Sri Lankan Army (“SLA”) and that plainclothes men came to his house, asking about a neighbour, P, who had been shot, and that the applicant and his parents were asked about P’s death and whether they were LTTE supporters, and that they were beaten. The applicant alleged that his parents complained to the authorities and nothing was done.
The applicant alleged that because of the poor living conditions, in 2007, his mother sent him to India. The applicant was found to have travelled on his own passport and returned to Sri Lanka on 29 December 2010.
The applicant alleged that his friend S planned to publish an article concerning environmental sustainability and that his friend was shot on 31 December 2010. The applicant alleged the SLA questioned the applicant about the death of S and accused the applicant of knowing who killed S and threatened him with their batons. The applicant alleged that he believed they would return to his home and beat him and that the applicant went into hiding.
The applicant alleged that he was hiding for four months and then left and went to Colombo where he remained in hiding for approximately 14 months and during that period, the SLA visited his parents’ house approximately three times, asking about the applicant. The applicant departed Sri Lanka for Singapore by plane in August 2012, using his own genuine passport. The applicant claimed to fear harm from the SLA and/or the EPDP and by reason of being suspected of having LTTE links and because of his friendship with S who was shot and because he sought asylum in Australia.
The Authority’s decision
Following the decision of the delegate, the Authority wrote to the applicant on 12 October 2016 and identified that the decision to refuse the application for the protection visa had been referred to the Authority for review. The letter identified that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on submissions and new information. The applicant did not do so.
The Authority in its reasons dated 20 April 2017 summarised the applicant’s background to the visa application and identified having regard to the information referred to the Authority under s 473CB of the Act and taking into account new information in accordance with s 473CB(3)(a) of the Act.
The Authority summarised the applicant’s claims and evidence. The Authority set out the relevant law. The Authority was satisfied that the Sri Lankan authorities did not consider the applicant to be an LTTE supporter, or person of interest for any other reason, at the time of his return to Sri Lanka on 30 December 2010.
The Authority was not satisfied the applicant faces a real chance of serious harm in relation to his Tamil race, any imputed pro-LTTE political opinion or his or his parents’ interactions with the Sri Lankan authorities prior to 2010.
The Authority referred to the applicant’s claims involving S. The Authority found the applicant’s evidence given at the interview and following his return from India on 30 December 2010 to be farfetched and lacking credibility. The Authority referred to the applicant’s explanation that he left Sri Lanka in 2012 on a genuine passport because he paid money to someone at the airport. The Authority was not satisfied this means the applicant was able to pay a bribe to be immigration cleared and depart Sri Lanka undetected, given country information indicated that at the time of his departure, there was a robust screening procedure in place at Colombo airport, operated by various law enforcement agencies. The Authority was satisfied the applicant boarded a flight to Singapore without incident and departed Sri Lanka legally.
The Authority did not accept the applicant was questioned about Mr S’s murder the day after it occurred or that the SLA and/or EPDP had any interest in him regarding the matter. The Authority was satisfied the SLA and/or EPDP did not have an interest in the applicant for any other reason. The Authority did not accept the SLA and/or EPDP questioned the applicant’s parents four to five times when he was hiding in Mamunai or three times after he left Mamunai for Colombo where he resided for 14 months before departing Sri Lanka for Singapore by plane.
The Authority was not satisfied the applicant has a profile with the Sri Lankan authorities because of the murder of his friend Mr S, that he was ever wanted for questioning or that he was ever in hiding for this reason. The Authority was not satisfied the applicant faced a real chance of harm from the SLA, or EPDP in relation to his friendship with a claimed activist, Mr S, or any imputed anti-Sri Lankan government political opinion arising from this.
The Authority referred to the applicant being a returned asylum seeker. The Authority was not satisfied the questioning of the applicant, checking of law enforcement databases and contacting police and family in the applicant’s home area to corroborate identity, amounts to serious harm.
The Authority was not satisfied there was a real chance the applicant would face serious harm on his return as a returned asylum seeker from Australia now or in the reasonably foreseeable future. The Authority found the applicant failed to meet the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.
The Authority was not satisfied there were substantial grounds for believing that as a necessary or foreseeable consequence of the applicant being returned to Sri Lanka from Australia that there was a real risk the applicant will 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 under review.
Before this Court
These proceedings were commenced on 17 May 2017. On 24 August 2017 a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.
At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the decision of the Authority was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that if it was satisfied the Authority’s decision was unlawful or unfair the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair the application would be dismissed with costs.
The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the 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.
Documents sought to be tendered by the applicant
From the bar table, the applicant then produced 12 pages and a photograph which he sought to tender. The applicant alleged that he only received these documents on 15 January 2018. The applicant confirmed that all the documents went to advance his claims in respect of being persecuted if returned to Sri Lanka. The first respondent opposed the tender of the material.
This Court does not have power to make fresh findings of fact in relation to the applicant’s claims. In the circumstances of the present case, the applicant had confirmed that the material went to seeking to advance and establish his claims. The Court is not in a position to make fresh findings in that regard and the first respondent was correct in objecting to the same as being irrelevant to the application for judicial review.
The documents were marked for identification and returned to the applicant. The Court rejected the tender as the documents are not relevant to the establishment of jurisdictional error by the Authority. Documents that were not before the Authority cannot establish a jurisdictional error insofar as it is alleged that the documents go to the merits of the claim.
The applicant from the bar table repeated the substance of his claims and sought to explain how the documents supported his claims that he was seeking to tender. The Court again explained to the applicant that the documents had been rejected.
The applicant also sought to explain adverse findings by the Authority and the applicant raised a new claim concerning land in his home area which was not raised before the Authority or the delegate. A claim not raised before the Authority and for not fairly arising on the material before the Authority cannot give rise to any jurisdictional error by the Authority.
In substance, the applicant’s submissions from the bar table invited this Court to engage in impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.
The grounds in the application are as follows:
1. IAA misapplied the well-founded fear test in that it failed to take into consideration on-going suspicion towards the Applicant from years ago.
Particulars
a) IAA did not correctly consider that the Applicant will be persecuted on return as the Sri Lankan authorities had suspicion that the Applicant had LTTE connections.
b) IAA failed to make a finding that the Applicant will be imputed with LTTE profile.
2. IAA made a jurisdictional error of natural justice ..
Particulars
IAA did not put to the Applicant the country information relied on.
3. IAA made a jurisdictional error by misconceiving the facts.
Particulars
IAA failed to consider that although Applicant was allowed to go through the airport authorities at that time did not have any notice of previous ongoing suspicion about the Applicant.
The Court’s reasoning
In relation to ground 1, the Authority correctly identified the relevant law and provided orthodox reasons in support of the adverse findings made by the Authority. Those adverse findings were open for the reasons given by the Authority including relevantly the applicant’s return to Sri Lanka in 2010 and also the applicant’s use of his own passport in departing Sri Lanka in 2012. The adverse findings cannot be said to be unreasonable or illogical.
On the face of the material before the Court, the Authority correctly identified the applicant’s claims and made findings that were dispositive to the applicant’s claims that were open to the Authority. The Authority especially considered the applicant’s claims in relation to suspicions being involved with the LTTE and the adverse finding in that regard was open for the reasons given by the Authority. Ground 1 in substance invites the Court to engage in the inadmissible merits review. No jurisdictional error is made out by ground 1.
In relation to ground 2, on the face of the material before the Court, the Authority complied with its obligations of procedural fairness by giving the applicant an opportunity to put on new information and put on submissions.
The statutory regime under Part 7AA expressly provides for the Authority to receive new country information without providing same to the applicant for comment or submission under s 473DC(3)(a) of the Act. There was no denial of natural justice by the Authority taking into account more recent country information. No jurisdictional error was made out by ground 2.
In relation to ground 3, it is apparent that the Authority did take into account the applicant’s purported explanation for bribing an official so that he could leave Sri Lanka in 2012 and did not accept that proposition as plausible. That was an adverse finding that was open for the reasons given by the Authority. There is no identified misconceived fact by the Authority in its adverse findings or in consideration of the applicant’s claims. The applicant’s disagreement with the adverse findings does not establish any relevant legal error. No jurisdictional error is made out by ground 3.
As the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 23 February 2018
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