CFX17 v Minister for Immigration

[2018] FCCA 275

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFX17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 275

Catchwords:
MIGRATION – Immigration Assessment Authority – safe haven enterprise visa – whether the Authority failed to take into account relevant information – whether the Authority erred in not inviting the applicant to comment – whether the Authority erred in not inviting the applicant to attend an interview – no jurisdictional error identified – application dismissed.

Legislation:

Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 473CB, 473DA, 473DB, 473DD, 473DE, 476.

Applicant: CFX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1619 of 2017

Judgment of: Judge Street

Hearing date: 7 February 2018

Date of Last Submission: 7 February 2018

Delivered at: Sydney

Delivered on: 7 February 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr M Wiese
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1619 of 2017

CFX17

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 Authority”) under Part 7AA made on 12 May 2017, affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

2. The applicant arrived in Australia on 13 November 2012. On 14 April 2016, the applicant lodged an application for a Safe Haven Enterprise visa. On 19 October 2016, the delegate found the applicant failed to meet the criteria for the grant of the visa.

The Authority’s decision

1. On 26 October 2016, the Authority wrote to the applicant, identifying that the application for the protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information. The letter provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and to put on submissions.

2. Pursuant to that letter, the applicant provided submissions dated 14 November 2016, referred to in the Authority’s reasons, and also provided three sources of country information and attached four letters, all of which were referred to in the Authority’s reasons.

Applicant’s claims for protection   

1. The applicant claimed to fear harm in Sri Lanka from the Sri Lankan Army and associated Tamil paramilitary groups, due to imputed connections with the Liberation Tigers of Tamil Eelam (“LTTE”). The applicant claimed to fear harm as an asylum seeker who departed Sri Lanka illegally. The applicant claimed that, during the Sri Lankan civil war, his home area of Batticaloa was under the control of the Sri Lankan Army (“SLA”) and, between 2002 and 2003, the applicant worked as a security guard at a school in the area controlled by the LTTE, around 30 kilometres from his home.

2. The applicant had to pass through eight checkpoints to reach his workplace. The SLA thought the applicant was working for the LTTE and the LTTE thought the applicant was an SLA spy. The applicant alleges that, on one occasion, while travelling to work, the SLA interrogated him at a checkpoint and slapped him.

3. In 2002, the applicant went to Qatar and, upon return to Sri Lanka in 2004, the SLA and an affiliated Tamil paramilitary group in Arayampathy started looking for the applicant. The applicant alleges in 2005, he went to work in Saudi Arabia because his life was still in danger in Sri Lanka. The applicant alleges he returned in September 2010 and stayed in three different locations but the SLA and paramilitary continued to follow him. The applicant alleged they would come at night for him or intimidate him over the phone. During the Safe Haven Enterprise visa interview, the applicant maintained that he was never pursued by the SLA, the paramilitary or anyone else, outside Arayampathy.

4. In October 2010, the applicant went to work in Qatar again because of ongoing threats, and upon return to Sri Lanka in 2011, stayed at two locations, being Kandy and Colombo. The applicant alleges that when he visited Arayampathy, the SLA and paramilitary there recognised him and, believing he had been with the LTTE for the previous eight years, they attempted to catch him, and that the applicant escaped.

5. The applicant alleges that he relocated to Kalkuda, where he rented a house and lived with his parents and sister. The applicant alleges the paramilitary came to the house looking for him and threatened to shoot him. The applicant alleges, at one point, he was picked up by a white van and assaulted because he was new to the village. The applicant complained to the police about people coming to his house and this aroused police suspicions and they started to investigate him.

6. The applicant alleges, after lodging the police complaint, the applicant moved in with a member of the parliament, who advised him to leave the country as soon as possible. On 2 November 2012, the applicant departed Sri Lanka via boat. The applicant alleges the SLA and paramilitary are still active in Arayampathy and Tamil people are still going missing or being murdered.

Information before the Authority

1. The Authority, in its reasons dated 12 May 2017, summarised the background to the visa application and identified having regard to the material referred under s 473CB of the Act. The Authority then turned to the submission that was provided, dated 14 November 2016, and identified, insofar as it reiterates claims made to the delegate and contains arguments in response to the issues in the delegate’s decision, the Authority was satisfied it was not new information for the purpose of the Act, and had regard to the same.

2. The Authority then identified the three sources of country information that were provided attached to the submission and were not before the delegate and found the same to be new information. The Authority descended into considering the contents of that information in terms of an evaluation of the new information in the context of the applicant’s claims. The Authority identified that two of the sources are news articles from the TamilNet website which were published in 2008 and pre-date the delegate’s decision. The Authority noted that source’s report on shootings which had taken place in the Batticaloa District that year. The Authority referred to the third source, being a news article from the FastNews.lk website and which refers to the arrest of the Tamil Makkal Viduthalai Pulikal (“TMVP”) General Secretary, which occurred on 23 October 2015, albeit the day of publication is not stated.

3. The Authority referred to the fact that, during the Safe Haven Enterprise visa interview, the delegate advised the applicant that he would take into consideration any further information the applicant wished to provide, if received prior to the making of a decision. The applicant was also informed on that occasion that the IAA is a limited form of review and can only consider new information in exceptional circumstances. The Authority noted that whilst the applicant was unrepresented, he confirmed he had read all the information provided as to how the Safe Haven Enterprise visa would be assessed and that he understood it.

4. The Authority noted that the submission does not offer an explanation as to why the first two news articles were not provided to the Minister prior to the delegate’s decision. The Authority noted, according to the third article, the secretary was arrested in 2015 and the Authority was satisfied the applicant could have provided an alternate media article about this event prior to the delegate’s decision.

5. The Authority also made express reference to there being other information before the delegate regarding this arrest. That was clearly a reference to the context of the applicant’s claims more generally. It was in these circumstances the Authority was not satisfied exceptional circumstances existed to justify considering these three new sources.

6. The Authority then turned to the four letters that were not before the delegate and were found to be new information. The Authority explained that the letters appeared to have been sought by the applicant in support of his Safe Haven Enterprise visa and, in a general sense, reiterate his claim that he sought asylum in Australia to protect his life from armed groups and would be in danger if he returned to Sri Lanka. The reasoning of the Authority reflects an evaluation of the significance of the new information in the context of the applicant’s claims more generally.

7. The Authority then turned to the first letter, which it was found post-dated the delegate’s decision. The Authority then turned to the second letter, which did not state the year it was dated, and the Authority was prepared to accept that it was published after the delegate’s decision and could not have been provided, like the first letter, to the Minister before the delegate’s decision. It was in these circumstances the Authority was satisfied the first and second letters were not in the applicant’s possession before the date of the delegate’s decision but found that the letters are one of support which appear to have been written at the applicant’s request. This, again, was a reference to an evaluation of the significance of the letters.

8. The Authority noted the applicant provided a number of supporting documents with his Safe Haven Enterprise visa application, and that no explanation had been provided as to why the applicant did not also provide the first and second letters at that time. It was in these circumstances the Authority was not satisfied that exceptional circumstances existed to justify considering these two letters.

9. The Authority then turned to the third letter, identifying where it was from and that it pre-dates the delegate’s decision. The Authority noted that there were several other letters in support attached to the applicant’s Safe Haven Enterprise application, which were before the delegate. The Authority noted that no explanation had been provided as to why this letter was not included with those for the delegate’s consideration. The reference to other letters of support reflects an evaluation of the significance of the new information in the context of the applicant’s claims more generally. The Authority was not satisfied exceptional circumstances existed to consider justifying the third letter.

10. The Authority then turned to the fourth letter, which was undated, but the translated copy of which had a reference to a signed date of March 2016 and noted that no explanation had been provided as to why the applicant did not provide the letter prior to the delegate’s decision. The Authority correctly identified the purported letter to be from a particular village official and noted that it was an undated document. The Authority was not satisfied exceptional circumstances existed to justify considering the fourth letter.

11. The Authority noted the submission also referred to the Department of Foreign Affairs and Trade (“DFAT”) report published 16 February 2015 and made reference to the arguments in relation to it being supportive of the applicant’s claims and, in particular, treatment of Sri Lankans of Tamil ethnicity and citizens who departed illegally and sought asylum. This reflects an evaluation of the significance of the new information in the context of the applicant’s claims more generally.

12. The Authority noted there is no explanation as to why this report was not provided to the delegate prior to the delegate’s decision and noted that DFAT had issued a number of reports on Sri Lanka since then which contained more recent analysis. The Authority was not satisfied there were exceptional circumstances to justify considering the 16 February 2015 report.

13. The Authority identified that it had obtained new information, being a more recent country report for Sri Lanka which was published on 24 January 2017. The Authority was satisfied there were exceptional circumstances to justify considering the new information, consistent with s 473DE(3)(a).

Refugee assessment

Young Tamil male from the East – imputed pro-LTTE political opinion

1. The Authority identified the relevant law, and included the applicable law in the attachment to the Authority’s reasons. The Authority summarised the applicant’s claims and evidence. The Authority referred to an incident alleged by the applicant to have occurred in 2004, which had also been alleged to have occurred in 2011. In a written statement the applicant asserted it was in 2004 about three months after he returned from Qatar. The applicant alleged that a particular person of the paramilitary, Mr P, recognised the applicant at a checkpoint. The Authority found the applicant’s claims to be implausible, far-fetched, and lacking in detail and did not accept the applicant was recognised at a checkpoint shortly after his return from Qatar, as claimed.

2. The Authority did not accept Mr P or anyone else attempted to abduct the applicant, as claimed. The Authority did not accept the applicant’s claims that in between this incident and departing for Saudi Arabia in 2005 the applicant stayed with different relatives and avoided his home area of Arayampathy in an effort to avoid attention from the SLA and paramilitary. The Authority did not accept that the release of Mr P from jail was of any relevance to the applicant’s personal situation.

3. The Authority accepted the applicant’s claim that the applicant was only in Arayampathy and Colombo for a short period of time.

4. The Authority did not accept that in 2004 or 2011 an unnamed person attempted to abduct the applicant in a white van. The Authority was not satisfied of the time the applicant has spent outside of Sri Lanka after departing and returning to the country legally on three occasions would cause the Sri Lankan authorities to impute him with a pro-LTTE political opinion in his home area or Sri Lanka as a whole. The Authority found the applicant has never been a person of interest to the Sri Lankan authorities because of his travel history prior to 2012.

5. The Authority found the applicant’s claims that he was actively pursued by the SLA and paramilitary on his return from overseas in 2004, 2010, and 2011 not to be credible. The Authority did not accept the applicant ever lodged a police complaint about threats or that this caused the police to start investigating the applicant. The Authority found the applicant was not a person of interest to either the SLA, the paramilitary, or the police for any reason prior to his departure by boat. The Authority was not satisfied the applicant faces a real chance of serious harm from paramilitary groups in Batticaloa or anywhere else should he return to Sri Lanka.

6. The Authority referred to the applicant’s claim that since he has been in Australia the SLA and police have been around in the neighbourhood, noting the details of people who left Sri Lanka by boat. The Authority found it plausible the authoritie conducted such an exercise. The Authority considered the applicant’s status as a returned asylum seeker as a consequence of his illegal departure. The Authority was not satisfied the applicant would be imputed to hold a pro-LTTE political opinion because he is in Australia.

7. The Authority found there are no additional factors or relevant factors which contribute to any sort of profile for the applicant. The Authority found there was a lack of credible evidence to indicate the applicant was at the time of his departure or will be on return of interest to the Sri Lankan authorities or paramilitary groups. It was in these circumstances the Authority was not satisfied there is a real risk the applicant would suffer harm by any of the authorities or any other group on return.

Failed asylum seeker – illegal departure

1. The Authority referred to the applicant being a failed asylum seeker and an illegal departee. The Authority was satisfied on the evidence there is a real chance the applicant will be questioned, fined and held briefly as part of the re-entry process. The Authority was not satisfied that questioning and the fine in question amounts to serious harm. The Authority was not satisfied that the payment of the fine or being held in detention for a period of up to 24 hours at the airport or possibly a nearby prison cumulatively amounts to serious harm.

2. The Authority found the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the IE Act”) applies to all Sri Lankan citizens and is not discriminatory on its face and in its application. The Authority found the treatment that the applicant will face as a consequence of the application of the IE Act does not constitute persecution within the meaning of s 5J(4) of the Act.

3. The Authority found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act and it found the applicant does not meet the requirements of the definition of refugee in s 5H(1) and that the applicant did not meet the criteria under s 36(2)(a).

Complementary protection assessment

1. The Authority was not satisfied the imposition of a fine amounts to significant harm. The Authority found the fine and/or potential of being held in detention for a short period and/or any other treatment the applicant is liable to receive under the IE Act, when considered together, does not amount to the death penalty, deprivation of life, torture or that there is an intention to inflict pain or suffering, severe pain or suffering, or cause extreme humiliation. The Authority was not satisfied that the payment of the fine amounts to significant harm as defined under s 36(2A) and s 5 of the Act.

2. The Authority found there are not 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 reason the applicant would suffer significant harm. The Authority found the applicant does not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

1. On 31 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.

The Grounds of the application

1. The grounds in the application are as follows:

   Ground one-

   The IAA has committed jurisdictional error in my case. It has declined its jurisdiction in my case as it has failed to make finding on the following facts. They are:

   The relevant issue is now that what will happen to me if I were to return to Sri Lanka.

   I contend that the DIBP has accepted I was subject to questioning, monitoring and harassment in Sri Lanka.

   I refer to the DFAT country information (DFAT Report dated 16 February 2015) which is reliable and independent which evinces that my claims of fear and further harm prior to leaving Sri Lanka are consistent with this country information.

   I further refer to the DFAT Report dated 16 February 2015 which is reliable country information on Sri Lanka evinces that my refugee claims are consistent the reliable country information and that Report supports the following:

   1. Failed asylum seekers, especially ethnic Tamils like me, will be detained on arrival for questioning;

   2. There is possibility of ill-treatment during the questioning process although it would be purpose of my illegal departure from Sri Lanka;

   3. I am a Tamil from the East; and

   4. Sri Lankan security forces maintain effective control throughout Sri Lanka; and

   5. There is a possibility of interrogation and ill-treatment for me due to my suspected profile than other Tamils returning as failed asylum seekers.

   The IAA should consider my claim for complementary protection pursuant to section 36(2) (aa) of the Migration Act 1958 (Cth) as well whether there was a real risk that I would suffer “significant harm” If I were to return to Sri Lanka by reason of the enactment of the Immigrants and Emigrants Act (the I&E Act). As defined in s 36(2A), “significant harm” includes “degrading treatment or punishment” which in turn includes acts that cause, are intended to cause, “extreme humiliation which is unreasonable”. I contend that the I&E Act causes, and was intended cause, extreme and unreasonable humiliation in making it an offence punishable by imprisonment of 1-5 years and a fine to depart Sri Lanka otherwise than from an approved port of departure and/or without valid documents.

   I arrived in Australia by boat. I will be questioned at the airport while checks are undertaken. The Authorities at the airport will notify my return to my home area, my previous questioning and monitoring and harassment at the hands of the SLA checkpoints and my escape will come to the attention of the authorities. I will be detained for additional questioning and will be subject to harm due to these cumulative bases.

   On my arrival at the airport in Colombo, I would be questioned by the CID and I will be persecuted and prosecuted as well for my illegal departure as an ethnic Tamil male from the East with the suspected LTTE profile There is information before the DIBP that there are potential risks of physical violence in prison.

   I will have to suffer continually in detention until a relative and/or family bail me. In fact there is no one in Colombo to vouch for, and bail me.

   I kindly request additional documents enclosed herewith this submission and to consider this information for your review.

   I trust my IAA review application will be accorded with natural justice.

   Please provide me with an opportunity to provide any information you think relevant before you make a decision on your Review.

   Ground 2

   When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me for an interview to comment on or respond to the adverse information on which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments relating to the issues and relied on this to refuse my protection visa in relation to my referred application with the IAA.

   I will provide the particulars of these grounds in my Amended Application when it is required by this court.

Nature of the hearing

1. At the commencement of the hearing the Court explained to the applicant this was a final hearing to determine whether the Authority’s decision 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.

2. The Court explained that, if 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.

3. The court explained that it would have identified the evidence and hear submissions from the applicant and 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.

Submissions from the bar table

1. From the bar table, the applicant complained that the Authority had failed to take into account the further information that he had provided. The applicant maintained that he was a refugee and that he could not return to Sri Lanka and that his life would be in danger.

Consideration

1. Insofar as the applicant’s oral submissions raised the issue of how the Authority dealt with the new information identified in the Authority’s reasons, those reasons reflect a consideration of both limbs of s 473DD by the Authority in the consideration of that new information.

2. On a fair reading the Authority considered both whether the new information could have been presented to the Minister and an evaluation of the significance of the new information in the context of the applicant’s claims. The Authority’s reasons are to be read as a whole. On a fair reading there is no basis to infer that the Authority adopted an erroneously narrow meaning of “exceptional circumstances.”

3. Further, on a fair reading, there is no basis to infer that the Authority failed to have regard to both limbs of s 473DD in relation to the new information. The applicant’s submissions from the bar table otherwise invited the Court to engage in impermissible merits review. This Court has no power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground 1

1. Ground 1 of the application is a verbatim summary of the submission sent to the Authority under cover of the email dated 14 November 2016 identified and discussed in the Authority’s reasons.

2. On its face, in those circumstances, Ground 1 is, in substance, an invitation to this Court to engage in impermissible merits review. This Court does not have power to revisit the merits. The substance of Ground 1 reflects a disagreement with the adverse findings by the Authority. Those adverse findings were open to the Authority for the reasons given by the Authority as referred to above. Those reasons cannot be said to be illogical or unreasonable.

3. On the face of the material before the Court the Authority complied with its statutory obligations in the conduct of the review and on the face of the material before the Court the Authority complied with its obligations of procedural fairness by the sending of the letter to the applicant giving the applicant an opportunity to put on submissions and new information. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to Ground 2, the applicant complains that he was not invited to attend a hearing. The scheme of the review under Part 7AA is one which under s 473DB the Authority must review the fast track reviewable decision by considering the material provided under s 473CB without accepting or requesting new information and without interviewing the referred applicant subject to the other statutory provisions in Subdivision C of Division 3.

2. Further, Division 3 pursuant to s 473DA is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. Subdivision C of Division 3 identifies powers in which the Authority can receive new information and invite comment or interview. There is nothing in the circumstances of the present case that identify any request was made to the Authority to interview the applicant.

3. In these circumstances no jurisdictional error arises by reason of the failure to invite the applicant to attend an interview, nor was the Authority required to put to the applicant the new country information taken into account because of the provisions of s 473DE(3)(a). No jurisdictional error is made out by Ground 2.

Conclusion

1. As the application fails to make out any jurisdictional error the application is dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 March 2018