CIS17 v Minister for Immigration

[2020] FCCA 809

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIS17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 809

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority made an incorrect finding about new information – no jurisdictional error made out – amended application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 473CB, 473DD, 476

Applicant: CIS17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 278 of 2017

Judgment of: Judge Street

Hearing date: 8 April 2020

Date of Last Submission: 8 April 2020

Delivered at: Sydney

Delivered on: 8 April 2020

REPRESENTATION

Counsel for the Applicant: Mr M Guo

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the Respondents: Ms C Taggart

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The hearing will be recorded by Microsoft on Microsoft Teams and by Auscript on the Judge’s microphone and no other recording of the hearing is to be made.

2. A link to the Microsoft Teams recording will be uploaded to the “Transcript” folder on the Electronic Court File and may be made available to the parties upon request.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 8 April 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 278 of 2017

CIS17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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”) made on 11 May 2017 under pt 7AA of the Act affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa (“the Protection visa”). 

2. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country.

3. The applicant arrived in Australia on 31 August 2012 as an unauthorised maritime arrival. 

4. The applicant was born in a particular district in Northern Province and was found to be a Tamil and had injuries from a civil war and feared harm by reason of suspected Liberation Tigers of Tamil Eelam (“LTTE”) links and by reason of his illegal departure and seeking asylum in Australia. 

5. On 18 November 2016, the Delegate found that the applicant failed to the meet the criteria for the grant of the Protection visa.

6. On 10 January 2017, the Authority wrote to the applicant explaining that the application for the Protection visa had been referred to the Authority for review and provided an attached fact sheet and Practice Direction providing the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions, which were referred to in the Authority’s reasons. 

7. The Authority identified the background to the Protection visa application and had regard to the information referred to it by the Secretary under s 473CB of the Act. 

8. The Authority referred to the submissions and had regard to the same insofar as they engaged with the Delegate’s decision. The Authority otherwise identified and considered what was said to be new information in relation to the requirements of s 473DD of the Act. The Court will return to those findings shortly.

9. The Authority summarised the applicant’s claims. 

10. The Authority referred to alleged questioning of the applicant in 2012 by the Criminal Investigation Department (“the CID”) and did not accept that the events occurred and did not accept that, since the applicant has been in Australia,  the CID have questioned his sister about him or that the CID are looking for him. 

11. The Authority was not satisfied that the applicant has a well-founded fear of persecution because he is a young Tamil male from the north of Sri Lanka who still has visible injuries as a result of the Sri Lankan civil war and was questioned about suspected LTTE links whilst he was at various Internally Displaced Persons (“IDP”) camps, because the Sri Lankan authorities continued to monitor and harass his family for an unspecified time period after their resettlement in 2010 or because he helped organise and coordinate Remembrance Day commemorations in Perth in 2016. The Authority was not satisfied that there was a real chance that the applicant would suffer serious harm for any or all of these reasons should he be returned to Sri Lanka now or in the reasonably foreseeable future. 

12. The Authority referred to the applicant’s illegal departure and took into account country information. 

13. The Authority expressly took into account the applicant’s personal circumstances and made reference to the finding that there is no real chance that the applicant’s personal circumstances would result in serious harm on account of any imputed or pro-LTTE political opinion should these aspects of his appearance come to the attention of the Sri Lankan authorities upon return.

14. The Authority also was not satisfied that any routine questioning of the applicant upon his return would amount to serious harm. The Authority was not satisfied that the payment of a fine or being held in detention for a short period at the airport or possibly a nearby prison cumulatively amounts to serious harm. The Authority also made reference to the applicant, if he pleads guilty, being released on his own personal surety. 

15. The Authority expressly found that it did not accept that the applicant or his family would be unable to pay the fine should one be imposed. The Authority was satisfied that the applicant would be granted personal surety or that a family member would be available if required. The Authority was not satisfied that if the applicant pleads not guilty, he will be detained any longer. 

16. The Authority referred to country information and noted that the Sri Lankan Immigrants and Emigrants Act is a law of general application, the application of which does not amount to persecution. 

17. The Authority referred to country information in relation to returnees from Australia and the absence of information indicating that the Sri Lankan government is targeting returnees who have lodged applications for protection overseas. The Authority was satisfied that even if correspondence came to the attention of the Sri Lankan authorities, it disclosed no more than the fact that the applicant has sought asylum in Australia. The Authority took into account the assessment by the Department of Foreign Affairs and Trade (“DFAT”) of the risk of mistreatment of returning asylum seekers to be low. The Authority was satisfied that the disclosure of the applicant’s personal circumstances will not impute him with any anti-Sri Lankan government political opinion and that he would not face a real chance of serious harm as a result. 

18. The Authority referred to the applicant’s injury and was not satisfied that he would face a real chance of serious harm for this reason. 

19. The Authority found that the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act. 

20. The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

21. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Ground in the Amended Application

1. Mr Guo, counsel on behalf of the applicant, relied on the following ground in the amended application:

   1.The Immigration Assessment Authority (IAA) incorrectly concluded that the information that ‘if a person is detained by the Sri Lankan security services there remains a real risk of ill treatment or harm requiring international protection’ (the Information) was new information, and failed to consider that Information when considering the Applicant’s claim that he faced a real risk of significant harm upon return to Sri Lanka.

   Particulars

   a.   The Information appeared at [2.3.4] of the UK Home Office report which was before the delegate at the time of her decision, and cited at footnotes 7 and 8.

   b.   When the IAA considered the Applicant’s claim as to real risk of significant harm upon return (at [58]- [59]), it did not engage in any active intellectual process directed at the Information, which was inconsistent with its conclusion.

2. Mr Guo took the Court to the Authority’s reasons in para 13 and submitted that the Authority had incorrectly identified one of the publicly available sources of country information as being new information.

3. In that regard, the Authority relevantly referred to content in the submission that was advanced at page 274 of the court book, in para 12 as follows: 

   12. According to the most recent UK Upper Tribunal country guidance decision, GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC):

   (2) The focus of the Sri Lankan government's concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.

   (3) The government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the 'violation of territorial integrity' of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.⁹

   9. GJ and Others (post-civil war: returnees) Sri Lanka CG {2013] UKUT 00319 (IAC).

4. There was also a reference in para 20: 

   20. Additionally, there is significant evidence that any period of detention - even brief - will subject the Applicant to a real risk of the types of significant harm defined in s 5(1) of the Act. On 3 July 2013, the UK Upper Tribunal (Immigration and Asylum Chamber) made a country guidance decision which replaced all previous UK country guidance on Sri Lanka which made the following finding: 'If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.' ²¹

   21.GJ and others {post-civil war: returnees) Sri Lanka CG {2013} UKUT 00319 (IAC).

5. Mr Guo’s submission is that the provisions of s 473DD of the Act concern information and not documents, and that the information the subject of the different source of publication identified in the submissions was the same information as was before the Authority in the UK Home Office Country Information and Guidance – Sri Lanka:  Tamil Separatism, Version 2, May 2016 report (“the UK Home Office report”) that was before the Delegate and was also before the Authority and was expressly referred to in the Authority’s reasons, including in paragraphs in the near vicinity of the relevant quote that Mr Guo relied upon.

6. The Authority’s reasons in para 13 were as follows:

   13.The IAA submission also refers to five publicly available sources of country information which were not before the delegate and are new information. Four of these sources were published prior to the delegate's decision. The applicant's then representative was present at the SHEV interview, during which the delegate advised she would take into consideration any further information the applicant wished to provide, if received prior to making her decision. The applicant's then representative sent the delegate a post-interview written submission which contains similar country information to the IAA submission before me, regarding the post-war environment and the situation for Tamils and returnees to Sri Lanka. I am satisfied the applicant was given the opportunity to address the issues raised in the country information he has now submitted to the IAA. I am not satisfied exceptional circumstances exist to justify considering these four new sources.

7. The Authority identified that the five publicly available sources of country information were not before the Delegate and were new information. That proposition was entirely correct. The mere fact that there might be another source of information that has the content of the information as identified on the UK Home Office report does not mean that the Authority’s reference to the five publicly available sources of country information was incorrect in identifying that as being new information. The Authority was not referring to particular quoted material from the applicant’s submissions; rather, the Authority was referring to the sources.

8. The Authority also identified that it was referring to those sources in the following paragraph that referred to four of the sources being published prior to the Delegate’s decision. The Authority referred to the applicant’s submissions and identified that it contained similar country information to the material before the Authority. On its face, that is a reference that picks up the UK Home Office material to which the applicant refers in the argument of alleged error by the Authority. The Authority found that it was not satisfied that there were exceptional circumstances that justified considering the four new sources. 

9. The four new sources of information are not confined to the quotations that are sought to be relied upon by Mr Guo. There are material differences between what has been set out in the applicant’s submissions in relation to those sources, and it is not identical in content. Mr Guo’s argument is that the sentences, in substance, reflect the same content.  The sentences appear in a difference sequence, a different formatting and are from a different source. In those circumstances, the Authority was entirely correct to identify the same in respect to the sources as being different information. The Court does not accept that the mere fact that there is an identical sentence found or identical words found in a different source means that the Authority was wrong in identifying the sources as being new information.

10. The Authority in its reasons clearly identified that it had taken into account the submissions insofar as they engaged with the Delegate’s decision and that the same did not constitute new information. There was no error by the Authority in identifying the four sources of new information in para 13 as being new information. 

11. The fifth source is not in issue in relation to the argument advanced by the applicant, and it is only one of the four upon which the applicant relies in respect of this argument.

12. The second difficulty, in any event, faced by the applicant is that it is apparent from the Authority’s reference to there being similar country information that it should not be read with a keen eye for error. On its face, it means that the Authority took into account the substance of what was the alleged corresponding information in the UK Home Office report. 

13. Mr Guo submits that there needed to be an express engagement with those particular paragraphs that were referred to. There was intellectual engagement by the Authority with the applicant’s submissions, and it cannot be said that there was not a proper or real and genuine consideration given to the applicant’s submissions concerning the new information the subject of para 13. 

14. Further, given the references that appear subsequently in the Authority’s reasons, to which the first respondent referred, to the Home Office report and the paragraphs in the vicinity of the paragraphs focused upon by Mr Guo, there is no proper basis to infer that the Authority did not give genuine consideration to the content of the applicant’s submissions concerning the information the subject of the alleged argument that it is not new information.

15. Further, given that there is no proper basis to find that the Authority did not take into account the content of the almost identical information that was in the UK Home Office report, there is no basis to find any materiality in respect of the alleged error. In other words, the alleged error could not in the present case have possibly given rise to any different outcome in the conduct of the review. No jurisdictional error as alleged in the amended application is made out. 

16. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 8 April 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 11 June 2020