CJG16 v Minister for Immigration

[2017] FCCA 453

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJG16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 453

Catchwords:
MIGRATION – Immigration Assessment Authority – fast track review –Safe Haven Enterprise (subclass 790) visa – extension of time hearing – whether the Authority failed to put new information to the applicant for comment – 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, 473DC, 473GB, 476, 477.

Cases cited:

Minister for Immigration v Singh [2016] FCAFC 183

MZAFZ v Minister for Immigration and Border Protection  (2016) 243 FCR 1

Applicant: CJG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2303 of 2016

Judgment of: Judge Street

Hearing date: 10 March 2017

Date of Last Submission: 10 March 2017

Delivered at: Sydney

Delivered on: 10 March 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application for an extension of time made under s.477 of the Migration Act 1958 (Cth) in the amended application is dismissed.

1. The Applicant pay the First Respondent’s costs fixed in the amount of $6,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2303 of 2016

CJG16

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”), made on 14 July 2016, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The originating application was filed in this Court seven days after the 35-day period provided under s.477 of the Act, and accordingly, the applicant requires an extension of time under s.477 of the Act.

3. The applicant is a citizen of Sri Lanka and his claims were assessed against that country. The applicant was born in a particular town in the Eastern Province of Sri Lanka and spent much of his life in the district where that town was located. The applicant lived and worked legally in Doha, Qatar for just over a year between 2010 and 2011.

4. The applicant returned to Sri Lanka in August 2011 and then left Sri Lanka illegally by boat on 4 September 2012. The applicant arrived at the Cocos (Keeling) Islands on 20 September 2012 and was transferred to Christmas Island on 20 September 2012 as an illegal maritime arrival.

The Delegate’s Decision

1. The applicant applied for a Safe Haven Enterprise (subclass 790) visa on 25 September 2015. The applicant was the subject of a protection visa interview on 2 December 2015. The delegate found the applicant’s application for protection was valid. The delegate identified that the applicant was of Tamil ethnicity and of the Hindu religion.

2. The applicant claimed to have been taken in for questioning two or three times in mid-2009 with many other Tamil males from the particular district. The applicant claims he was questioned on the grounds of suspicion that he was a Liberation Tigers of Tamil Eelam (“LTTE”) member. The applicant said that he was released on each occasion and asserted that he was beaten by members of the Criminal Investigation Department (“CID”).

3. The applicant alleges that after he returned from working abroad at Qatar, he continued working as a car mechanic in the particular district. During that time, the applicant alleges that members of the Tamil paramilitary groups, Pillayan and Tamil Makkal Viduthalai Pulikal (“TMVP”), previously known as the Karuna Group, came to the garage to get him to repair vehicles.

4. In late 2011, the applicant alleges that two Sinhala men came to the garage where he worked and asked him questions about his customers. The applicant claims that the following day, two men returned to the garage and identified themselves as CID officers and he was taken to the police station, interrogated, and physically assaulted. The applicant alleges that he was released about three or four hours afterwards.

5. The applicant fears that if he returns to Sri Lanka, he will be targeted once again by the Sri Lankan authorities and that his life will be in danger. The applicant believes it would not be possible for him to work freely as a mechanic due to problems faced from Tamil paramilitary groups.

6. The applicant also fears if he returns to Sri Lanka as a failed asylum seeker, he will be harmed by the Sri Lankan authorities on account of his Tamil ethnicity and his imputed political opinion.

7. The delegate made reference to being satisfied that the applicant comprehended the questions and answered them promptly and appropriately and was satisfied that the applicant’s memory did not adversely affect his interview.

8. The delegate noted that the applicant was asked if he was ever involved with his relative’s activities for the LTTE and that he replied “no”. The applicant was asked if he, himself, was ever involved in anti-Government activities and that he answered in the negative.

9. The delegate found that the applicant was able to travel from Qatar, through Colombo, without any issues, and that the applicant did not indicate that his freedom of internal and external movement had been curtailed. The delegate found that the applicant was of no significant adverse interest to the Sri Lankan authorities at that time.

10. The delegate made reference to the applicant’s alleged incident in 2011. The delegate found that the applicant had been questioned and physically assaulted, as claimed, in 2011. The delegate found that it was significant that the applicant was not directed to report to a police station or military camps after being released in 2011. Accordingly, the delegate found the applicant did not have an adverse political profile in his local community prior to his departure from Sri Lanka.

11. The delegate was not satisfied that it would be impossible for the applicant to work freely as a mechanic if he were returned to Sri Lanka.

12. The delegate referred to inconsistencies in the applicant’s evidence as to his activities after the interrogation in 2011 and took into account psychological reports in relation to the applicant’s memory. The delegate also referred to an alleged letter of support dated 26 November 2015, referring to the detention of the applicant in 2011. The delegate was not satisfied the letter corroborates facts with any Authority. The delegate was satisfied that the letter had been written based solely on information provided by the applicant and his family. The delegate put greater weight on the view formed that the applicant was a person who is no longer of any interest to the Sri Lankan authorities and, accordingly, did not give the document any evidentiary weight in establishing the applicant’s claim that he has an adverse political profile.

13. The delegate did not accept that there is a real chance of the applicant being persecuted for reason of him being a Tamil and originating from a formerly controlled LTTE area. The delegate considered the applicant’s fear of persecution for this reason, today, or in the reasonably foreseeable future, is not well-founded.

14. The delegate found that the applicant was not of any particular further adverse interest to the Sri Lankan authorities or any other groups prior to his departure from Sri Lanka, for any reason.

15. The delegate found that there is no real chance the applicant will face serious harm on return to Sri Lanka on account of any actual or imputed political opinion because of his claimed connection to the LTTE.

16. The delegate was not satisfied that the applicant, on return to Sri Lanka, would be accused of having an LTTE political profile because he is a Tamil and was born in the East, because he originated from or resided in the East, or because he has a familial connection to a relative who had purportedly been kidnapped.

17. The delegate was not satisfied that the applicant, by not abiding with his condition upon release will attract significant adverse attention from the Sri Lankan authorities. The delegate found there is no real chance that the applicant will face serious harm on return to Sri Lanka on account of any actual or imputed political opinion for any combination of the claims advanced.

18. The delegate considered the applicant’s illegal departure and coming from a Western country. The delegate found that while it may be possible the applicant will have to wait in custody to be brought before a magistrate on certain circumstances, like during weekends, for example, such treatment is not persecutory harm. The delegate did not consider the applicant will face harm amounting to persecution on return to Sri Lanka, for departing that country illegally.

19. The delegate found that the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the I&E Act”) was a law that applies to all Sri Lankans, regardless of their ethnicity and there is no evidence to indicate that Tamils are treated differently from other Sri Lankans in the application of the law or of facing abuse while on remand or at the airport. The delegate considered the arrival process and possible charges arising from an illegal departure to be laws of general application and did not find that such a process would amount to persecutory conduct or serious harm.

20. The delegate found the applicant does not face a real chance of persecution or serious harm from the Sri Lankan authorities and/or paramilitary groups, either in Batticaloa, at the airport or elsewhere in Sri Lanka as a whole, for any reason under s.5J(1)(a) of the Act.

21. The delegate made reference to considering the matter cumulatively and found it remote that the applicant would be imputed with a pro‑LTTE/anti-Government profile or an actual or imputed political opinion in the future if returned to his home area, because he is a Tamil and has returned from Australia.

22. The delegate found there would be no real chance the applicant would suffer persecution on return to his home district because of being a member of the possible particular social group of failed Tamil asylum seekers. The delegate found that the applicant did not face a real chance of harm in the district from the Sri Lankan authorities and/or paramilitary groups in the district for any reason. The delegate found if the applicant were to return to his home district or anywhere else in Sri Lanka, that any real chance of the applicant being harmed by the Sri Lankan authorities or paramilitary groups was remote.

23. The delegate was not satisfied there is 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. The delegate found the applicant is not a refugee as defined in s.5H of the Act and that the criterion under s.36(2)(a) of the Act was not met.

24. The delegate found that there were 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 risk the applicant will suffer significant harm as required by s.36(2)(aa) of the Act. The delegate found the applicant did meet the criterion under s.36(2)(aa) and that the applicant was not a person in respect of whom Australia had protection obligations.

25. The delegate found that the applicant was not an excluded fast-track applicant under s.5(1) of the Act.

The Authority’s Decision

1. On 25 May 2016, the Authority wrote to the applicant identifying that the refusal to grant the applicant a protection visa had been referred to the Authority for review. The Authority identified that it had been provided with all the material in the applicant’s case, and included the material provided by the applicant to the department officer, and that the Authority would proceed to make a decision on the case on the basis of the information sent by the department unless the Authority considers new information. The letter identified that the Authority can only consider new information in limited circumstances which were explained in the attachment to the letter and the Practice Direction. The letter also invited submissions.

2. On 23 June 2016, the applicant sent an email to the Authority acknowledging the referral letter of 25 May 2016. The email said that the applicant had read and understood the department’s refusal decision and the acknowledgment of the referral and the Practice Direction sent to the applicant.

3. The email provided what the applicant said was independent and reliable country information to evidence that Tamils are still at fear of persecution and that his claims were credible. The letter referred to assuming that in the review, the Authority would afford natural justice and provide any information it thinks adverse to his review for his comment. The Authority, on 24 June 2016, acknowledged receipt of the applicant’s submission by email dated 23 June 2016.

4. The Authority, in its decision, identified the applicant’s background and his claimed fears of persecution by reason of being suspected of having links with the LTTE because he faced harassment from Tamil paramilitary groups and because he left Sri Lanka illegally and applied for asylum in Australia.

5. The Authority identified having regard to the material referred to the secretary under s.473CB of Part 7AA of the Act. The Authority referred to the applicant’s submission dated 23 June 2016. The Authority referred to the attached country information and considered the same to be legal argument and not information and, accordingly, had regard to it. The Authority also made reference to the attached country information with the document, including three documents which were not dated or titled, but appeared to be texts from the information in the “DFAT Country Information Report - Sri Lanka”, dated 16 February 2015. The Authority noted that that information was before the delegate and, accordingly, the Authority did not regard that as new information and had regard to it.

6. The Authority identified the applicant’s claims and background and accepted the applicant’s evidence in relation to his uncle’s involvement in the LTTE as credible.

7. The Authority referred to the alleged incident in 2009 and accepted the applicant’s claim to have been detained and mistreated by Sri Lankan authorities on several occasions prior to the end of the civil war.

8. The Authority referred to the applicant’s alleged events in 2011 when the applicant returned from Qatar and recommenced work as a mechanic. The Authority identified concerns about the applicant’s credibility in relation to the claims that he was detained by the CID in 2011 and provided reasons in support of that adverse finding.

9. The Authority was also not satisfied that the detention by the Sri Lankan Police and the STF that the applicant referred to in his 2012 interview was a reference to the 2011 detention, as the information provided appears to be consistent with the 2009 arrest.

10. The Authority considered that if the Sri Lankan authorities really suspected the applicant of having links to the LTTE, he would not have been released after one day when he was detained in 2009.

11. The Authority also gave weight to the applicant’s own claim that he remained living in his home for approximately eight to nine months after he was released and was not questioned and/or detained further by the CID during that period.

12. The Authority made reference to the letter to which the delegate had referred and did not give that letter any weight in the assessment, for the reason that the applicant claimed he had never met the priest. The Authority also noted that the applicant claimed he did not know if the author of the letter had confirmed the information with the police. Accordingly, the Authority did not accept the applicant was detained by the CID in 2011.

13. The Authority referred to the earlier concerns in respect to the applicant’s credibility as to the claims as to what occurred in 2011, and the reason why he left Sri Lanka provided at interview being because Sinhalese people would not give him a job. The Authority did not accept the explanation given to the delegate for that omission. The Authority was not satisfied that any of the claimed events in 2011 actually occurred, including that he was harassed and questioned by men from Tamil paramilitary groups in 2011.

14. The Authority addressed the applicant’s illegal departure and the seeking of asylum in Australia.

15. The Authority was not satisfied that the Sri Lankan authorities would perceive the applicant as having links to the LTTE as the Sri Lankan authorities did not accuse him of having LTTE links during his detention in 2009 and have shown no further interest in him since then.

16. The Authority accepted there is a real chance the applicant will be questioned by the Sri Lankan authorities on return and charged with an offence under the Immigration and Migration Act I&E Act for departing illegally. The Authority found that if the applicant pleads guilty he will be fined and released. The Authority did not consider questioning or the imposition of a fine to amount to serious harm. The Authority noted that if the applicant pleads guilty he may be granted bail and he may need to await a family member to come to Court to collect him.

17. Having found that the applicant does not come within the profiles identified in the country information, and does not have a profile that would attract adverse attention of the Sri Lankan authorities on return, the Authority found that it was not satisfied the applicant will face a real chance of torture or mistreatment whilst being detained and questioned by the authorities on return to Sri Lanka.

18. The Authority considered that being questioned and fined and detained for a short period did not cumulatively rise to the level of serious harm. The Authority found that the application of the I&E Act in respect of those Sri Lankans who have departed unlawfully is an application of the law which applies to all Sri Lankans and that there is no evidence that the enforcement of this law is applied in a discriminatory manner. The Authority was not satisfied that the loss of liberty the applicant may endure for a few days, and the imposition of a fine on return to Sri Lanka, amounts to persecution within the meaning of s.5J(4) of the Act.

19. The Authority also made reference to having considered the applicant’s claims cumulatively and found that they do not give rise to a real chance of serious harm.

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

21. In relation to the complementary protection provision, the Authority found that the poor conditions in the Sri Lankan prisons are not as a consequence of the authorities’ deliberate attempt to inflict suffering on the prison population, but a result of lack of space and resources.

22. The Authority was not satisfied that the applicant will face significant harm on return to Sri Lanka on the basis that he may spend several days in a Sri Lankan prison on return. The Authority found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criterion under s.36(2)(aa) of the Act.

Proceedings Before this Court

1. At the commencement of the hearing the Court explained to the applicant that, as the originating application was not filed within the 35 day period, the Court was hearing whether or not an extension of time should be granted under s.477 of the Act. The Court explained to the applicant that, in general, the relevant considerations in respect of an extension of time under s.477 were: firstly, the applicant’s explanation for the delay; secondly, whether the first respondent suffered any prejudice; and thirdly, the merits of the application.

1. In relation to the merits of the application, the Court explained to the applicant that this involved whether the applicant had a reasonable argument that the Authority’s decision was affected by relevant legal error.

2. 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 that if the Court was satisfied that the applicant had a reasonable argument, that the Authority’s decision was unlawful or unfair, and there is an adequate explanation for the delay, the Court would extend time and fix the matter for hearing on another occasion. The Court explained that if not satisfied that the applicant had a reasonable argument that the Authority’s decision was unlawful or unfair, and that there was not an adequate explanation for the delay, the amended application would be dismissed.

3. The Court explained to the applicant that the Court would have identified the evidence, and then hear submissions from the applicant, and then hear submissions from counsel 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. From the bar table, the applicant maintained that the Authority had not asked him for an interview and that they did not ask him questions about the matters that the Authority adversely decided against the applicant.

4. On 17 November 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. As identified the applicant filed an amended application.

5. The grounds of the amended application are as follows:

   The IAA acted unreasonably in failing to put new information to me for comment.

   Particulars

   a. The delegate at paragraphs 123 and 129 accepted my claim that I was detained and questioned by the Sri Lankan authorities in late 2011;

   b. The IAA at paragraphs 16 to 19 and 24 found that due to my overall credibility the IAA was not satisfied that any of the claimed events of 2011 actually occurred. This information was not before the delegate at the time of making in the decision under section 65 and is therefore new information;

   c. The IAA acted unreasonably in not putting this new information to me in writing or orally under s473DC(3) for comment and denied me a fair hearing.

6. In relation to the consideration of the issues that arise under s.477, the applicant provided an explanation for the delay, that he was trying to get assistance from friends for the appointment of a lawyer, that he was struggling to find a lawyer, as well as the fact that he was sick and that he had heard about his mother’s ill health, which made him upset and distressed. There was no suggestion by the first respondent of any prejudice in relation to the delay. The seven-day delay is not significant, although the explanation for the delay is less than satisfactory.

7. No particulars were provided about the steps actually taken to obtain a lawyer, or any supporting evidence in respect of the applicant’s assertions of being sick or that his family member was sick. Nonetheless, the critical issue in the present case are the merits of the application.

8. In relation to ground 1, the applicant has, in substance, complained that the Authority did not raise with him the opportunity to respond to its adverse credibility findings, and characterised those adverse credibility findings as new information. The review conducted by the Authority was held under Part 7AA of the Act, which, in substance, creates a review of the material that was before the delegate for fast-tracked review applicants, and the scheme of the Act provides limited circumstances in which the Authority can consider new information.

9. It is clear the Authority took into account the applicant’s submissions as identified in the Authority’s reasons. The credibility findings by the Authority are not new information, that enliven the power of the Authority under s.473DC(3). Further, the Authority was not bound by the findings of the delegate in the conduct of the review. The reasons for the adverse credibility findings by the Authority have not been the subject of any specific challenge as to irrationality or not being based on the evidence. It was a matter for the Authority to determine the applicant’s claims and evidence consistent with the review under Part 7AA.

10. The applicant’s request, in his submissions to the Authority, to be given an opportunity to comment in relation to any matter that the Authority may think adverse, did not impose any obligation on the Authority to do so. Further, the adverse credibility findings cannot be said to be unreasonable. On the material before the Authority, the adverse findings were open and do not lack an evident and intelligible justification. The power conferred under s.473DC(3), is a discretionary power. The absence of the Authority inviting the applicant to comment on the adverse credibility findings, or to invite the applicant to attend an oral hearing in that regard, was not a statutory requirement and cannot be said, in the circumstances of the present case, to be unreasonable. No arguable jurisdictional error of the kind alleged in ground 1 is made out regarding the amended application.

11. The first respondent has drawn to the Court’s attention that there was a certificate provided to the Authority under s.473GB in the present case. The certificate relevantly identified a particular document described as an identity assessment form. The certificate identified that disclosure of it would be contrary to the public interest because it is a departmental working document. In the present case there was no issue raised in respect of the identity of the applicant.

12. I accept the first respondent’s submission that the circumstance of the present case can be distinguished from that in the decision of MZAFZ v Minister for Immigration and Border Protection  (2016) 243 FCR 1 and Minister for Immigration v Singh [2016] FCAFC 183, as this was an application under Part 7AA, and because of the effect of s.473DA. The first respondent did not concede that the certificate was invalid and submitted that, even if the certificate was found to be invalid, the discretion under s.473GB(3)(b) to disclose the certificate was not enlivened. The first respondent submitted that the Authority had no power or discretion to disclose the document, the subject certificate, in circumstances where it was not new information within the meaning of s.473DE. The first respondent submitted that there was no error in the Authority failing to disclose the document. I accept that submission.

13. Further, I accept the first respondent’s submission that there is no basis to infer that the Authority acted or relied upon the certificate in the present case. I also accept the first respondent’s submission that, even if the Authority took the certificate into account, it does not follow that the Authority acted contrary to the statutory regime or that the applicant was denied any procedural fairness. Further, I find in the present case that I am satisfied that even if there was some error in relation to the failure to disclose the certificate to the applicant, I am satisfied it could not possibly have made any difference in the conduct of the review in the circumstances of the present case. That is, because the document related to the applicant’s identity, and that was not a relevant issue.

14. Accordingly, I am satisfied that any such error could not possibly have given rise to a different outcome. In these circumstances, if there was any such error, relief should be refused on discretionary grounds. Nothing was said by the applicant from the bar table to identify any jurisdictional error.

15. The amended application is dismissed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 23 March 2017