CFO17 v Minister for Immigration

[2020] FCCA 192

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFO17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 192

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant believed but his fears found not to be well-founded – whether there were new issues that the Authority should have put to the applicant for comment considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.425, 473DA, 473DC, 473DD, 473DE

Cases cited:

ALR17 v Minister for Home Affairs [2019] FCAFC 182
DGZ16 v Minister for Immigration (2018) 258 FCR 551

Applicant: CFO17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1613 of 2017

Judgment of: Judge Driver

Hearing date: 3 February 2020

Delivered at: Sydney

Delivered on: 17 March 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Pieri of HWL Ebsworth

ORDERS

1. The application filed on 25 May 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1613 of 2017

CFO17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 2 May 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the Minister’s submissions filed on 22 January 2020.

3. The applicant is a male citizen of Sri Lanka. On 11 August 2016, the applicant applied for a temporary protection (subclass 785) visa.[1]  He claimed to fear harm by ex-military criminals who would extort him on the basis that he is a Tamil gold businessman. The applicant also claimed that on two occasions, being June 2012 and September 2012, he was robbed by two men on a motorcycle.

   [1] Court Book (CB) 6

4. The applicant attended his scheduled protection visa interview on 8 February 2017.

5. On 17 February 2017, the delegate refused the application.[2]

   [2] CB 97

6. Relevantly, the delegate accepted that the applicant “was robbed by unknown men on two occasions in June and September 2012” (emphasis added).[3]  The delegate[4] accepted “the applicant was robbed on two occasions in 2012 by unknown individuals who may have been former military officials” (emphasis added).  Elsewhere in her findings, the delegate accepted that the applicant was robbed by “suspected ex-military men”,[5] and that the two occasions were “unfortunate random acts of violence rather than a personal attack on the applicant”.  The delegate found that:[6]

   [a]lthough the applicant suspects the perpetrators of the attacks against him may have been former-military men with links to the authorities, according to the applicant he was targeted due to the jealousy and competition amongst jewellery merchants in Sri Lanka and therefore, it is also possible that the applicant’s attackers were rival businessmen or their associates. Should the applicant be threatened on return by non-state agents, DFAT assesses that there is no law or Government policy which hinders access to state protection on the basis of religion or ethnicity.

   [3] CB 101

   [4] at CB 101

   [5] page 6 (CB 102)

   [6] CB 102

7. On 22 February 2017, the matter was referred to the Authority for review.

8. On 5 March 2017, the applicant's representative emailed submissions to the Authority.[7]

   [7] CB 223

9. On 2 May 2017, the Authority affirmed the decision of the delegate.[8]

   [8] CB 232

Authority's decision

1. The Authority referred to the applicant's submission to it, arguing the delegate had not considered a claim by the applicant.[9] The Authority did not consider this to be “new information” for the purpose of s.473DC(1) of the Migration Act 1958 (Cth) (Migration Act) and had regard to it.

   [9] CB 233 at [4]

2. The Authority observed the applicant's differing evidence as to the identity of his assailants.  The Authority noted that, when questioned by the delegate at interview about the changed basis for his identification of his assailants, the applicant indicated that he had discovered the men were ex-military officers while he was in Australia and after talking with friends and reading newspaper reports about ex-military officers escaping from the army in Sri Lanka.[10]

   [10] CB 235 at [13]

3. Relevantly, the Authority stated at [17]-[19]:

   I accept the applicant's claim that he was robbed on two occasions and received a threatening phone call to be plausible and credible. He provided relatively consistent and detailed accounts of each incident. I also accept his explanation for why he may have been targeted following a lengthy period of undertaking his work without incident as being plausible. However, he has based his conclusion that ex-military people were to blame on the basis that during the June 2012 incident and the phone call, Sinhalese was the language spoken, that during the September 2012 incident one of the motorbike riders was wearing a military style green camouflage tee-shirt and reports of a general nature about people leaving the army from newspapers and friends sometime after he had left Sri Lanka. I consider the applicant's basis for coming to the conclusion that his assailants were ex-military to be speculative and tenuous.

   Having regard to the timing of his later assertion that his assailants were linked with the military and the speculative basis for this conclusion, I do not accept that the unidentified people were linked with the military. I have given weight to his earlier suspicion that his assailants were part of a criminal underworld group provided during his entry interview at a closer point in time to the incidents and accordingly, I am not satisfied his assailants and the caller were linked with the military.

   While the applicant claims that during the June incident he was referred to as a "Tamil dog", I do not consider his ethnicity to have been the essential or significant reason for the attack. The men were reported to have stolen 40,000 rupees from the applicant. I note that during the visa interview, the applicant indicated that he would buy and sell gold jewellery according to demand. On some occasions, the jewellery he bought would be on-sold in a very short time, sometimes the jewellery would take one-two weeks to sell. Having regard to the apparent success of his business and that he was able to continue his business after both robberies, I consider this to be consistent with criminal activity against the applicant resulting from a tip-off from a jealous rival. I am satisfied the primary motivation for the attacks on the applicant was for financial gain and not his ethnicity.

4. The Authority was not satisfied that the applicant's assailants continued to pursue him for money or question members of his family following his departure from Sri Lanka.  Having regard to the absence of pursuit by his attackers following his departure from Sri Lanka and because he had not claimed to have faced any extortion threats prior to 2012, the Authority was not satisfied that the applicant otherwise faced a real chance of serious harm on this basis.[11]

   [11] CB 237 at [24]

The current proceedings

1. These proceedings began with a show cause application filed on 25 May 2017.  The applicant continues to rely upon that application.  The grounds in it are:

   1. The IAA made a legal error by making findings on new issues without putting them to the applicant for comment.

   Particulars

   (a) On page 6 of the delegate's decision record she accepted that the applicant was robbed on two occasions by suspected ex-military men;

   (b) At paragraphs 17 and 18 the IAA made a different finding from the delegate that his assailants were ex-military to be speculative and tenuous;

   (c) The IAA went further and found at paragraph 19 that the primary motivation for the attacks on the applicant was for financial gain and not his ethnicity;

   (d) At paragraph 20 the IAA found that given the IAA's "assessment that financial gain was the motivation underlying the attacks on the applicant and his profile for LTTE association, I am not satisfied he will face a real chance of serious harm from Sri Lankan authorities on the basis of his ethnicity."; and

   (e) All of the above are new issues that were not alive during the departmental process and the IAA has the power under sections 473DC and DD to put these new issues to the applicant and failed to do so and thereby made a jurisdictional error.

2. The application was accompanied by a short affidavit which I received.  I also have before me as evidence the court book filed on 9 November 2017.

3. This matter was originally allocated to the docket of Judge Barnes but was referred to me for hearing at a callover conducted on 12 March 2019.

4. It appears that the applicant attended both that callover and first court date directions conducted by a registrar.  He has not taken up the opportunities afforded him to file additional material. 

5. I invited oral submissions from the applicant at the trial of this matter on 3 February 2020.  The applicant stated that there was no inconsistency in his claims and evidence.  In that, the applicant is substantially correct in that the decision of the Authority did not turn on adverse credibility findings, whether based on inconsistency and evidence or otherwise but, rather, on the Authority’s assessment that the established facts did not give rise to a well-founded fear of persecution or significant harm.  I note further, in that regard, that the Authority’s assessment was substantially the same as that of the delegate.  In other words, the applicant gave a generally truthful account of what had happened to him prior to his departure from Sri Lanka but the circumstances were not sufficient to engage Australia’s protection obligations.

6. In his submissions in reply, the applicant stressed that he still has fears of returning to Sri Lanka and, that those fears have increased recently.  The applicant referred in particular to the recent election of the former Defence Secretary as President and the demolition of the applicant’s home, the theft of his property from the house and the killing of his dog at his house around the time of the Easter bombings in 2019.  Those events post dated the Authority decision and, as I explained to the applicant, the Authority could not have taken them into account. They are matters which the Minister could consider if he were so minded. 

Consideration

1. In my view, the applicant has not demonstrated any jurisdictional error in the decision of the Authority.  In that regard, I agree with the Minister’s submissions concerning the ground of review advanced.

2. The ground of review appears to take issue with three of the Authority's findings, being that:

   a)the applicant's basis for coming to the conclusion that his assailants were ex-military to be speculative and tenuous;[12]

   b)the primary motivation for the attacks on the applicant was for financial gain and not ethnicity;[13] and

   c)given the Authority's assessment that financial gain was the motivation underlying the attacks on the applicant and his profile for LTTE[14] association, the Authority was not satisfied that the applicant would face a real chance of serious harm from Sri Lankan authorities on the basis of his ethnicity.[15]

   [12] CB 235 at [17]

   [13] CB 236 at [19]

   [14] Liberation Tigers of Tamil Eelam

   [15] CB 236 at [20]

3. The applicant alleges that these findings were “new issues” that should have been put to him under ss.473DC and 473DD, in circumstances where the delegate allegedly accepted that the applicant was robbed on two occasions by ex-military men.

4. While the applicant alleges that these findings were “new issues”, I find that the findings were not “new issues” but were rather issues considered by the delegate. As illustrated at [6] above, the delegate did not make a positive finding accepting that the applicant's assailants were ex-military. To the contrary, the delegate referred to the applicant “suspecting” this to be the case, and in her summary of her factual conclusions referred to the men as “unknown”. It is therefore evident that the identity of the applicant's assailants was an issue before the delegate. Further, although the delegate did not find, in terms, that the assailants' motivation was financial, she considered that the two occasions he was harassed to be random acts of violence rather than a personal attack on the applicant, and the possibility that the assailants were rival businessmen. It is therefore evident that the motivation for the attacks was an issue before the delegate.

5. In relation to s.473DC(3), the Authority may invite the applicant orally or in writing to give new information. In DGZ16 v Minister for Immigration,[16] the Full Federal Court (Reeves, Robertson and Rangiah JJ) confirmed that the appropriate starting point for consideration of this issue was not Part 7 but the terms of Part 7AA. The Full Federal Court further confirmed that s.473DA(1) of the Migration Act constituted an exhaustive statement of the natural justice hearing rule; there was no equivalent obligation to s.425 under Part 7AA to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, and the Authority was permitted to depart from a finding of the delegate without informing the applicant.[17]  This position has since been affirmed in ALR17 v Minister for Home Affairs.[18]

   [16] (2018) 258 FCR 551

   [17] at [75]-[76]

   [18] [2019] FCAFC 182 at [32]

6. Accordingly, in circumstances where the Authority made its findings on the applicant's claims based on the evidence that was before the delegate, including the arrival interview, protection visa interview and his statutory declaration enclosed with his visa application, and in circumstances where the Authority made its findings on the same issues that were before the delegate, the Authority was not required to exercise its discretion under s.473DC(3) of the Migration Act to invite the applicant to give new information on its findings.

7. Further and in any event, the Authority's decision at [13] indicates that the delegate questioned the applicant during his interview about the changed basis for his identification of his assailants, and therefore, the applicant already had an opportunity to address concerns about the identification of his assailants.

8. To the extent that the applicant is alleging that the Authority should have given to it particulars of any new information that would be the reason, or a part of the reason for affirming the decision under s.473DE(1) of the Migration Act, the Authority did not rely on any such new information in making its findings. Rather, the Authority relied on the arrival interview, a statement enclosed with the applicant's protection visa application, and his protection visa interview which were before the delegate when the delegate made the decision, and would therefore not be classified as “new information” pursuant to s.473DC(1) of the Migration Act.

9. To the extent that the applicant takes issue with s.473DD of the Migration Act, the applicant has not identified any issue with the Authority's treatment of new information. In any event, the Authority did not consider, at [4], the applicant's submission in response to the delegate's decision dated 5 March 2017 to be “new information” and, therefore, there was no new information for the Authority to consider.

10. I do not rule out the possibility that a different decision maker, confronted with the same factual material, might have reached a different conclusion.  For example, a decision maker may have taken the view that, while the persons who robbed the applicant were motivated by a desire for financial gain, the applicant, a Tamil, presented as a more attractive target than a Sinhalese person would have.  That is not to say, that the conclusions reached by the Authority (like the delegate) were not open to it. 

Conclusion

1. I concluded that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  17 March 2020