Cib17 v Minister for Immigration

[2018] FCCA 3476

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIB17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3476

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority erred in failing to consider a claim – whether Authority failed to put matters to the applicant for comment – whether Authority erred in considering “new information” – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DB, 473DD

Cases cited:

Minister for Immigration & Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration & Border Protection v SZTQS [2015] FCA 1069
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481
SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936
SZTAP v Minister for Immigration & Border Protection (2015) 238 FCR 504

Other materials cited:
Department of Foreign Affairs and Trade, DFAT Country Report: Sri Lanka, 24 January 2017

Applicant: CIB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1678 of 2017

Judgment of: Judge Smith

Hearing date: 24 October 2018

Date of Last Submission: 24 October 2018

Delivered at: Sydney

Delivered on: 24 October 2018

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Mr C Lenehan

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1678 of 2017

CIB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 3 May 2017.  The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia by boat on 7 September 2012.  After the Minister had exercised his power to enable the applicant to apply for a protection visa, the applicant did so, lodging an application on 6 January 2016.

3. The claims made by the applicant in support of that application are summarised at [9] of the Authority’s decision which I set out below:

   • His family was displaced due to the escalating battles between the Sri Lankan army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE). His family sought refuge in India for a period of time.

   • He lost two of his brothers, one killed by accident by the Sri Lankan army (SLA) and the other is missing presumed dead.

   • Another brother was taken and detained for a year by the People’s Liberation Organisation of Tamil Eelam (PLOTE) on suspicion of being associated with the LTTE because he used to travel into the Vanni which was under Liberation Tigers of Tamil Eelam (LTTE) control. His brother was released with a warning that his whole family would be destroyed if they found out he was involved with the LTTE.

   • As a Tamil he was targeted by the SLA and associated paramilitary groups on suspicion of having LTTE involvement. He was often stopped on the street and questioned about his involvement with the LTTE. On one occasion in Jaffna in 1989 he was detained and beaten by the Eelam People’s Revolutionary Liberation Front (EPRLF).

   • On more than one occasion in Colombo he was arrested and detained by the police on suspicion of being involved with the LTTE. No charges were laid; he was eventually released after paying a bribe.

   • In 2000 he was arrested and detained by the police for almost a month.

   • He was rounded up with other Tamil people by the SLA in 2003. They were all arrested and detained for questioning, and taken to court but released without charge.

   • He was arrested and detained many times by the SLA on suspicion of being involved with the LTTE.

   • In 2006 he was detained in Batticaloa for approximately 14 days.

   • In 2007 after Poora Thivu came under SLA control, he was displaced and lived in Negombo. After the SLA resumed control, he was questioned before being allowed to return about connections to the LTTE because he was living with his wife in Poora Thivu but his identity card showed he was from Vavuniya. He was questioned many times after this. On one occasion, his shoulder was hurt when he was hit by a rifle butt.

   • He was targeted and harassed many times in his shop by the police who would come in and take drinks and cigarettes without paying. On one occasion in Batticaloa in 2010 they put a knife to his throat. The authorities checked on him in 2011.

   • The Grease men were also a major problem for him. They would often raid homes and abduct children. They only targeted Tamil areas and he would often find himself running from them and hiding for safety. Many times he was forced to sleep elsewhere out of fear of being caught and beaten by Grease men. The Grease men will harm and mistreat him if he returns.

   • Once he made a complaint against the local police station but the authorities did nothing about it and instead became angry with him. They began searching for him and wanted to punish him for making the complaint.

   (Without alteration)

4. On 30 November 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa.  The matter was then referred for review to the Authority.  On 23 December 2016 the applicant made a written submission to the Authority concerning his claims and the delegate’s decision.

5. On 28 March 2017 the Authority wrote to the applicant setting out extracts from a Country Information Report prepared by the Department of Foreign Affairs and Trade (DFAT) dated 24 January 2017[1].  It summarised the critical information set out in that report and invited the applicant to respond to that information. The applicant did so under cover of letter dated 20 March 2017 although that date must be incorrect.  That response was received by the Authority on 27 April 2017 suggesting the letter was, in fact, sent late in April 2017.

   [1] Department of Foreign Affairs and Trade, DFAT Country Information Report - Sri Lanka, 24 January 2017.

6. On 3 May 2017 the Authority made a decision to affirm the decision of the delegate.  Before assessing the applicant’s claims, the Authority, in its statement of reasons, set out its consideration of what information it did and did not take into account:  see [2]-[8].  It will be necessary to return to some of these paragraphs in due course. Essentially, the Authority accepted the background factual claims of the applicant however did not accept that those claims gave rise to either a well-founded fear of persecution or a real risk of significant harm if the applicant were returned to Sri Lanka.

7. In particular, at [20], the Authority explained that while it was willing to accept that the applicant had experienced a number of incidents of arrest, detention and harm in the past and there were isolated incidents since that time, it was not satisfied that the applicant was a person of interest to the authorities or other groups. In light of that assessment and the Authority’s assessment of country information, it considered that there was no real chance of harm to the applicant on the basis of the applicant’s actual or perceived links to the LTTE, his residence in a former LTTE controlled area or any perceived role in pro-Tamil separatist activities: [30]. It also considered that the applicant did not face any harm at the hands of so-called “Grease Devils”: [33].

8. In respect of the applicant’s claims concerning his illegal departure and the fact that if he were to return there he would be arriving in Sri Lanka as a returned asylum seeker, the Authority had regard to country information concerning the treatment of people in similar situations. Given that the applicant had no LTTE political or criminal profile, it found that the process of questioning and investigation, and the consequent treatment of the applicant for having breached the laws of Sri Lanka as an illegal departee, would not amount to serious harm or significant harm. It noted in particular that if he were to plead guilty to such a charge he, like others, would be granted bail immediately either by personal surety or a family member acting as guarantor: [40].

9. For those reasons, the Authority was not satisfied that the applicant had met the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

10. The applicant now seeks judicial review of the Authority’s decision.  There are four grounds in his application for review which, according to the applicant, were drafted by a barrister although that barrister has not appeared for the applicant today at the hearing. Even though the grounds were drafted by a barrister, it is very difficult to make any sense of them and they do not seem readily to apply to the facts of this case or to the law as it stands at the present moment.

11. Ground one is, I consider, an argument that the Authority failed to consider whether the treatment of his brother by a Government organisation, the PLOTE, might have had some impact upon the applicant upon his return to Sri Lanka.  Broadly put, the argument could be, although it is not stated in these terms, that the Authority failed to consider the applicant’s claims cumulatively.  No sensible reading of the Authority’s decision could give rise to that ground.

12. First, at [13] the Authority explained that while it accepted the claim that the applicant’s brother had been detained by PLOTE, it was satisfied the applicant was not at risk of harm on the basis of those events.  That was for two reasons: first, because the events happened many years ago; and secondly, that the applicant had not claimed that they had had any ongoing repercussions for the applicant.  In light of those firm findings, it was unnecessary for the Authority to return later to the possibility that there might have been such repercussions:  see Minister for Immigration & Border Protection v DDK16 [2017] FCAFC 188 at [34].

13. Further, in any event, the Authority repeated its finding about the absence of any profile of the applicant at [37], and if it be necessary to go further, at [44] expressly stated that it had cumulatively considered the applicant’s claims.  The first ground has no merit and is rejected.

14. The second ground, again, is written in such a confused was as to be almost meaningless.  The first suggestion in the ground is that the delegate had not put to the applicant that he would be arrested and detained upon return to Sri Lanka.  There is no evidence of what the delegate had or had not put to the applicant Even if the delegate had failed to do so, and thereby fell into jurisdictional error, that would not have affected either the jurisdiction of the Authority or the exercise of its jurisdiction, subject to one matter: see Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481.

15. The one matter or qualification I refer to is the potential where a new and critical issue arises before the Authority for the first time and becomes decisive without any notice to the applicant.  Such an issue might be, for example, the question of relocation.  In such circumstances, the courts have held that it might be unreasonable for the Authority to fail to consider to exercise its power to get new information from the applicant. However, none of those matters arise here because the Authority did put these matters to the applicant for comment.

16. Specifically, as I have mentioned, it wrote to the applicant on 28 March 2017 inviting him to comment on certain information which included information about the potential treatment of failed visa applicants in Sri Lanka who had departed illegally from that country.  That information, which was given to the applicant, contained the very information which was ultimately relied upon by the Authority, namely that if a person pleads guilty then they are likely to be released on bail on their own surety or upon a guarantee given by their family.

17. The Minister has somewhat generously construed this ground as potentially raising an issue such as that which was decided in Minister for Immigration & Border Protection v SZTQS [2015] FCA 1069. That case concerned a finding relating to the availability of bail in respect of potential charges for illegal departure from Sri Lanka. However, as noted by the Minister and by the Full Court in SZTAP v Minister for Immigration & Border Protection (2015) 238 FCR 504, that case turned upon its facts. In this case, there was no indication that the guarantee by a family member required any money: see [40] of the Authority’s decision.

18. In my view, given that the applicant had been given the opportunity to address this issue, had not raised any objection to the possibility that a family member might act as guarantor and in the absence of evidence that that guarantee might require a deposit of money, there was no error in the Authority proceeding on the basis that such a guarantee might be available or, in fact, would be available if required.  The second ground is rejected.

19. The third ground can be dealt with very briefly.  In effect, it seeks to raise an argument that was dealt with authoritatively by the High Court of Australia in SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936 at [26]-[27]. As the principle relied upon by the applicant in ground three is inconsistent with that authority, and I must follow that authority, the ground must be rejected.

20. Ground four is, once again, very difficult to understand.  The opening sentence in this ground commences: :

    The Authority’s decision is affected by jurisdictional error having considered information that was before the delegate (and failing to give opportunity to respond to the new country information); ...

    (Without alteration)

21. There is no logical connection between any of the premises in that phrase.  In any event, there is nothing wrong with the first premise and the second premise does not arise on the facts of this case.

22. The Authority is obliged by s.473DB(1) of the Migration Act 1958 (Cth) to consider the material that was before the delegate. Secondly, as I have already observed, the Authority did not fail to give the applicant the opportunity to respond to the new country information. It did so by its letter dated 28 March 2017.

23. In the second particular to the ground, at [4.2] of the application, it is asserted that the Authority has fallen into error in considering new information.  That is not, in fact, a particular of the ground.  In any event, it may be dealt with briefly.

24. The Authority had some information before it that was not before the delegate when the delegate made the decision to refuse to grant the visa and which the Authority considered was relevant to the review. For that reason, broadly speaking, that information was new information. Section 473DD of the Act prohibits the Authority from considering new information unless certain matters are satisfied. The Authority considered those matters in respect of two of the pieces of new information, namely the DFAT Country Report and the applicant’s response to the invitation to comment on that report, and found that the matters required by s.473DD were satisfied as set out in [6]-[8] of the Authority’s reasons for its decision:

    6. In accordance with s.473DC(1) of the Act I have obtained new information relating to the treatment of Tamils and of persons who have departed Sri Lanka illegally and sought asylum while overseas as well as the current situation in Sri Lanka under the new government, and on political freedoms and issues of human rights and reconciliation in Sri Lanka. The information is from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka (the new report). The new report is dated 24 January 2017 and was therefore published after the date of the delegate’s decision. The new report is DFAT’s most recent assessment of the situation in Sri Lanka and has been prepared specifically for the purpose of protection status determination. The delegate relied upon an earlier DFAT assessment. I am satisfied there are exceptional circumstances to justify considering this new information: s.473DD(a).

    7. On 28 March 2017 the IAA invited the applicant to comment on aspects of this new information that would be the reason or part of the reason for affirming the decision (other than information covered by s.473DE(3)).

    8. On 20 April 2017 the IAA received a response to the invitation. The response also attached a number of articles relating to the situation for Tamils in Sri Lanka. Given the submission provided was in response to a specific request for information, I am satisfied that the information could not have been provided to the Minister before the decision was made and that there are exceptional circumstances to justify considering the new information.

25. Having established the matters required by s.473DD, there was nothing erroneous in the Authority’s consideration of that new information. For those reasons, ground four must be rejected.

Conclusion

1. I am not satisfied that there is any jurisdictional error in the Authority’s decision.  The application must be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  3 December 2018