CID16 v Minister for Immigration
[2017] FCCA 485
•15 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CID16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 485 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Subclass 790) visa – whether the Authority should have considered new information – whether the Applicant was denied procedural fairness – whether the Authority asked itself the wrong question – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 422B, 473CB, 473DA, 473DC, 473DD, 473DE, 473DF, 473FA, 476. Immigrants and Emigrants Act 1949 (Sri Lanka) |
| Cases cited: SZTAL v Minister for Immigration [2016] FCAFC 69 |
| Applicant: | CID16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2275 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 15 March 2017 |
| Date of Last Submission: | 15 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Grant leave to the applicant to file and rely upon the amended application dated 15 March 2017.
The amended application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $6,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2275 of 2016
| CID16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application 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”) made under Part 7AA of the Act on 25 July 2016, affirming a decision of the delegate not to grant the application a protection visa.
Applicant’s claims
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant is of Tamil ethnicity and came from a particular district in the Eastern Province of Sri Lanka. The applicant claims to have left Sri Lanka on a genuine passport in November 1997 and resided in Qatar from 1997 until June 2012. The applicant claims to have resided in Qatar on a working visa that was renewed annually. The applicant claims to have visited Sri Lanka on vacation in 2004, 2007, and 2009, during the time he was living in Qatar. The applicant claims to have resided at his family home on his return trips in 2004 and 2007. The applicant claims that on a return trip in 2009 to Sri Lanka he resided temporarily in a refugee camp. The applicant claims to have left Sri Lanka illegally by boat in September 2012 and arrived in Australia as an illegal maritime arrival on 26 September 2012.
The applicant claims that he was pursued by the Sri Lankan Army in connection with his uncles’ activities in the LTTE. The applicant claimed that he was working for the Tamil National Party (“the TNA”) in the 2010 elections. The applicant is also a Hindu.
The applicant claims that he was detained in 1996. The applicant claims that his house was taken by the SLA in 2007. The applicant alleges that he went to the local government officials and was slapped and threatened not to come back or else he would be locked in jail. The applicant alleges that when he returned from Qatar in 2009, there were two men that came to his wife’s family home and wanted to know his whereabouts. The applicant claims that the house was returned to the wife’s family in 2012 and had been destroyed and that his father-in-law rebuilt the house.
The applicant alleges he was involved in canvassing for the TNA in the July/August 2012 elections. The applicant alleges people came to his house in August 2012 and he was told to stop canvassing for the TNA or they would shoot the applicant. The applicant alleges that he and his wife were beaten. The applicant alleges that he was told by a friend the CID had asked about him. The applicant alleges that since arriving in Australia, the CID has been asking about his whereabouts, and that the CID told his family that they had information he was involved with the LTTE. The applicant fears that he will be arrested and unreasonably detained by the Sri Lankan authorities if he returns to Sri Lanka.
The Delegate’s Decision
The delegate accepted the applicant was a Tamil and Hindu from the Eastern Province. The delegate accepted certain of the applicant’s claims in respect of incidents that had occurred. The delegate did not accept that the applicant had been specifically targeted for detention beyond one incident of a CID roundup of Tamil males that occurred during the civil war. The delegate found that the applicant was a low-level supporter of the TNA and did not consider there was any evidence to suggest that the applicant had a high political profile as a TNA member or supporter. The delegate did not accept that the applicant’s life was threatened in late August 2012 on the basis of his involvement with the TNA.
The delegate accepted as plausible that the applicant’s friend might have been approached by the CID. The delegate did not accept the applicant is currently imputed by the CID or other Sri Lankan authorities as holding a pro-LTTE opinion.
The delegate was not satisfied if the applicant returned to Sri Lanka the applicant would face a real chance of persecution for reasons of his race as a Tamil. The delegate was not satisfied if the applicant returned to Sri Lanka he faces a real chance of persecution for reasons of his religion as a Hindu. The delegate was not satisfied if the applicant returned to Sri Lanka he would face a real chance of persecution on the basis of his involvement with the TNA or for holding a pro-TNA political opinion.
The delegate was not satisfied the applicant was of ongoing interest to the Sri Lankan authorities on account of any perceived or actual affiliation with the LTTE. The delegate was not satisfied that if the Sri Lankan authorities were to discover the applicant’s previous involvement with the LTTE, he would be perceived as posing a current destabilising threat to the Sri Lankan state. The delegate was not satisfied the applicant faces a real chance of persecution due to the applicant’s imputed political opinion as pro-LTTE and anti-government.
The delegate did not accept that if the applicant were to return to Sri Lanka he would face a real chance of persecution on the basis that the applicant had close familial relations to persons whom have previously been involved in the LTTE. The delegate was not satisfied that if the applicant were returned to Sri Lanka he would face a real chance of persecution for reasons of his membership of a particular social group of returned failed asylum seekers.
The delegate referred to having considered the claims cumulatively and was not satisfied the applicant faces a real chance of persecution in Sri Lanka for one or more of the reasons mentioned in s.5J(1)(a) of the Act. The delegate 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 and found that the applicant was not a refugee as defined in s.5H of the Act and did not meet the criteria under s.36(2)(a) of the Act.
The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there is a real risk the applicant will suffer significant harm as required by s.36(2)(aa) of the Act. The Delegate found that the applicant was not a person in respect of whom Australia had protection obligations under s.36(2) of the Act.
The delegate found that the applicant was not an excluded fast track review applicant.
The Authority’s Decision
By letter dated 28 June 2016, the Authority acknowledged a referral of the protection visa application that had been refused. The letter noted that the Authority had been provided with all the documents by the department that were considered relevant to the applicant’s case and that the material that was provided by the applicant to the delegate had also been provided to the Authority.
The letter indicated that the Authority will proceed to make a decision on the applicant’s case on the basis of the information sent to the Authority by the department unless the Authority decides to consider new information. The Authority identified the limited circumstances which new information could be considered. The Authority provided attachments that identified and explained the nature of the new information that could be considered and the opportunity to put submissions.
By email dated 22 July 2016, the applicant’s migration agent provided submissions to the Authority.
The Authority referred to the applicant’s visa application and observed that the delegate accepted that most of the applicant’s claims in the protection application were credible. The Authority noted that the delegate did not accept that the applicant’s life was threatened in 2012 due to support of the TNA and did not accept that after he arrived in Australia the Sri Lankan authorities suspected him of involvement with the LTTE. The Authority noted that on the basis of country information, the delegate was not satisfied the applicant is owed protection obligations due to his being a Tamil, having relatives involved in the LTTE, having a pro-LTTE or anti-government political opinion, having a pro-TNA political opinion, being a Hindu, being a failed asylum seeker, or departing Sri Lanka illegally.
The Authority made reference to having regard to the material referred to the Authority under s.473CB of the Act. The Authority then made reference to the submissions received by the applicant’s migration agent. The Authority made reference to the submissions not being compliant with a practice direction because they exceeded the five-page note. It is not necessary in this case to consider whether a five-page limit imposed by a practice direction is appropriate in relation to these review applications because in the present case, the Authority considered the submission in its entirety. The Authority identified to the extent that the submission contains legal argument, the Authority did not regard that as new information and had regard to those parts of the submission.
The Authority noted that the submission also extracted and cited country information from various sources including relevantly information that was not before the delegate in footnotes 10 and 11. The Authority noted that it was submitted that that information was publicly available at the time of the delegate’s decision. The Authority considered that the country information in the footnotes 10 and 11 to be new information. The Authority observed that although the information was publicly available, it was not put before the delegate even though the delegate allowed the applicant’s migration agent additional time to provide written submissions after the interview. In these circumstances, the Authority was not satisfied there were exceptional circumstances to justify considering that new information.
The Authority identified the applicant’s claims and identified the relevant law. The Authority found having regard to all the evidence before the Authority and having considered the applicant’s claims individually and cumulatively as well as considering the personal circumstances of the applicant, the Authority was not satisfied the applicant has a well-founded fear of persecution for reason or combinations of reasons of his race, religion, nationality and membership of a particular social group and/or political opinion now or in the reasonably foreseeable future if he returns to Sri Lanka.
The Authority found the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Act and found that the applicant did not meet the requirements of s.36(2)(a).
The Authority found that the provisions and penalties of the Immigrants and Emigrants Act 1949 (Sri Lanka) are laws of general application and are not discriminatory in their terms or applied in a discriminatory way or selectively enforced. The Authority found that the applicant had no specific profile that would result in a longer detention, custodial sentence, or additional interrogation.
The Authority found that the likelihood that the applicant will be detained in prison is remote, but if he does, the Authority accepted the applicant may experience poor prison conditions during his detention. The Authority made reference to the country information indicating the poor conditions are due to overcrowding, poor sanitation, and lack of resources. The Authority found there is no real risk the applicant will be arbitrarily deprived of his life or tortured. The Authority observed:
“While the conditions are poor, I find there is no intention to inflict pain or suffering or extreme humiliation.”
The Authority observed that, in these circumstances, the poor prison conditions to which the applicant may be subjected do not of themselves constitute significant harm as defined under the Act. The Authority was not satisfied that individually or cumulatively, any processes or penalties the applicant may encounter under the Immigrants and Emigrants Act 1949 would constitute significant harm as exhaustively defined in s.36(2A) and in s.5 of the Act.
The Authority found that the applicant did not have a real risk of serious harm on the basis of being a Tamil, his family’s connection to the LTTE, because he made a complaint against the army, because he supports the TNA, because he would be someone with an imputed pro-LTTE opinion or an anti-Sri Lankan Government political opinion, or because he will return to Sri Lanka as a failed asylum seeker. The Authority was not satisfied that the applicant will face a real risk of significant harm if he is removed to Sri Lanka.
The Authority found there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to the receiving country there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the requirements of s.36(2)(aa) of the Act and affirmed the decision of the delegate.
Proceedings Before this Court
The grounds of the amended application are as follows:
Ground 1
The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [4]).
Particulars
1.1 The Authority ignored the information.
1.2 The Authority failed to take into account the information.
1.3 The Authority failed to properly classify that the information was new information;
1.4 The Authority failed to consider whether the section s 473DD was applicable in the circumstances.
1.5 The Authority failed to consider whether the delegate should have considered the relevant information in any event (such that there was no need to apply exceptional circumstances test).
1.6 The committed jurisdictional error.
Ground 2
The Authority fell into jurisdictional error in denying the Applicant procedural fairness and breached s 473DC of the Act.
Particulars
2.1 The Authority failed to provide opportunity to respond and put the Applicant on notice that the Authority would overturn determinative findings of the delegate regarding the Applicant's involvement with TNA.
2.2 The Applicant was not put on notice that the Authority had concerns about the Applicant’s involvement with TNA.
2.3 The Authority s473DC(3) in considerably departing from the delegates finding and erred in the exercise of the discretion.
2.4 The Tribunal erred in the construction of the Act.
Ground 4
The Authority fell into jurisdictional error in dealing with the Applicant's illegal departure. The Authority erred in not asking the correct question of intention in respect of the Applicant's detention regarding Applicant's illegal departure and thereby committed jurisdictional error. The Authority in consideration of the intentional aspects of the detention and impliedly / expressly referred intentions of the players carrying out detention (and has misconstrued the provisions) and erred in construction of the expression “intentionally inflicted” in the definitions of “torture and “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act 1958 (Cth) (Migration Act) and arrived at the conclusion that there was no significant under error of construction at [CB345 at [37]) in circumstances where such poor conditions and so on constitute the above and erred by the composite fashion of application of the Act.
Particulars
4.1 The Authority did not ask the correct questions.
4.3 The Authority committed jurisdictional error.
(a) The Applicant would be detained for leaving country illegally.
(b) The Authority accepted that the Applicant may be detained in poor conditions with overcrowding owing to lack of resources (CB 343 (IAA at [30] – [37])).
(c) The Authority did not consider / erred considering the issue of intention and whether in carrying out the duties there intention to inflict serious or significant harm on the question of the Applicant's detention.
(d) The Authority erroneously limited it consideration / erred [37] in the construction that the detention for illegal departure:
(1) the expression “intended to cause” in the definition of “degrading treatment or punishment” in s 5(1) of the Migration Act;
(2) require an actor to have “an actual, subjective, intention” to inflict pain or suffering, or to cause extreme humiliation, by the actor’s acts or omissions, being an intention that cannot be proved by the actor’s knowledge of the consequences of the actor’s acts or omissions, no matter how certain that knowledge may be (at [91]).
(e) Erred in not addressing that there was intention or not asking the correct question regarding detention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment on the applicant.
(f) The Authority applied the wrong test or asked itself wrong questions when it found that the Applicant would not suffer significant harm.
(g) The Authority committed jurisdictional error.
(Errors in original)
Mr Kumar of counsel took the Court to the Authority’s reasons in paragraph 4 and, in particular, the country information in footnotes 10 and 11, which the Authority found was not new information that it would consider under s.473DD. Mr Kumar of counsel submitted that the country information should have been taken into account and should not have been treated as new information. It was open to the Authority to treat the country information that was not referred to by the delegate as being new information.
Mr Kumar of counsel complained that the Authority had failed to consider whether the information met the proviso under s.473DD. It is apparent that the Authority identified that it was not satisfied that there were exceptional circumstances to justify considering the new information. The Authority gave reasons in that regard given that the information was available at the time of the interview before the delegate and that the delegate provided an opportunity after the interview to provide a written submission and the applicant had not done so.
There was no failure by the Authority to properly exercise its jurisdiction in respect of the country information that the Authority considered was new information that did not meet the requirements of s.473DD(a) and by the Authority not considering that country information. No jurisdictional error is made out by ground 1.
In relation to ground 2, Mr Kumar of counsel sought to rely upon the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and submitted that in the present case the Authority had departed from the favourable findings of material parts of the applicant’s claim that had been accepted by the delegate. Mr Kumar of counsel argued that as a matter of procedural fairness, and/or as an application of the exercise of powers under s.473DC(3), the applicant should have been invited to give new information in writing or invited to an interview in respect of the Authority’s departure from the favourable findings by the delegate.
Mr Kumar submitted that s.473DA was, in substance, in the same terms as s.422B of the Act and that, accordingly, the requirements of procedural fairness were not excluded. I accept the submissions of the first respondent in relation to the scheme of Part 7AA and the proper construction of s.473DA and the limited powers given to the Authority to receive and consider new information as identified in s.473DC, 473DD, and the obligations that arise under s.473DE and s.473DF. The Authority is not bound to give the applicant notice or a further opportunity to respond to findings made by the Authority that depart from findings made by the delegate.
Mr Kumar of counsel also drew attention to the obligation of the Authority in the exercise of its functions identified under s.473FA. I accept the first respondent’s submission that the Authority is not bound by the findings of the delegate and that in the conduct of the review it is open to the Authority to make findings that are reasonably open on the material before it and that there is no obligation either arising at common law or by way of procedural fairness under which the Authority must give the applicant a chance to respond to a concern in departing from a finding of the delegate. That there is no obligation under s.473DC(3) on the Authority to exercise the power to invite a person orally or in writing to give it new information in circumstances where the Authority is departing from a finding of the delegate.
Moreover, in the present case, the Authority sent the applicant a letter dated 28 June 2016 acknowledging the referral and identifying for the applicant the procedure that would be followed in relation to the review and provided the applicant with an opportunity to put on submissions and/or advance new information. This opportunity complied with the obligations of procedural fairness to the extent not excluded by s.473DA. I accept the first respondent’s submission that the power under s.473DC(3) is a discretionary power and the failure to exercise that discretion does not give rise to any jurisdictional error. No issue of legal unreasonableness arises in the present case. No jurisdictional error is made out by ground 2.
In relation to ground 4, Mr Kumar put a formal submission that the decision in the Full Court of the Federal Court of Australia in SZTAL v Minister for Immigration [2016] FCAFC 69 has been wrongly decided and that there is an error of the kind identified in that decision in respect of the intention to inflict or the intention to cause significant harm. That was a proper course for counsel to take so as to preserve his client’s position. No additional submission was sought to be put distinguishing the circumstances of the present case from the decision in the Full Court. This Court is bound by the Full Court. Accordingly, ground 4 fails to make out any jurisdictional error.
The amended application is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 4 April 2017
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