CKG16 v Minister for Immigration
[2017] FCCA 508
•17 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKG16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 508 |
| Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) visa – whether the Authority failed to act in accordance with s.473DE of the Act – the information was not new information falling within s.473DE – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 91K, 473CB, 473DA, 473DD, 473DE, Part 7AA Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 Spencer v Commonwealth of Australia (2010) 241 CLR 118 SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 |
| Applicant: | CKG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2335 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 17 March 2017 |
| Date of Last Submission: | 17 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar by direct access |
| Solicitors for the Respondents: | Mr L Leerdam DLA Piper |
ORDERS
Leave is granted to the Applicant to rely upon the amended application dated 13 March 2017.
The amended application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2335 of 2016
| CKG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 2 August 2016 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. The applicant is a Tamil from Batticaloa in Sri Lanka and claimed to fear harm because of threats from the Sri Lankan Army personnel who suspect him of being a member of the LTTE and a supporter of the Tamil National Alliance (“the TNA”).
The applicant left Sri Lanka for Australia on 9 September 2012 and arrived in Australia as an illegal maritime arrival on 25 September 2012. On 8 September 2013 the applicant lodged an application for a Protection visa (subclass 866) which was deemed invalid under a bar pursuant to s.91K of the Act.
On 26 May 2015 the Minister exercised his power under s.46A(2) to allow the applicant to lodge an application for a Safe Haven Enterprise (subclass 790) visa. On 14 September 2015 the applicant lodged the application for the visa the subject of these proceedings.
The Delegate
The delegate referred to the applicant providing a document purporting to be a police report and an English translation regarding the alleged incident. The delegate noted that the document, although purportedly being about an incident that allegedly occurred on 6 May 2009, was dated 27 April 2012. The delegate observed that the document did not have any official letterhead which could be expected of a document of this type. The delegate observed that he was unable to verify the document or its translation and as such, placed no weight on the document in support of the applicant’s claims regarding the particular incident.
The delegate was not satisfied that the applicant was tortured on several occasions in 2006 or 2007, that he witnessed the abduction of his uncle in 2009, or that he was pursued by unknown men in 2012 due to being an alleged witness to this abduction.
The delegate was not satisfied the applicant was of any interest to Sri Lankan authorities or other groups due to the claimed abduction of his uncle, any claimed involvement with the TNA or due to being an imputed supporter of the LTTE, or for any other reason.
Assessment of refugee criterion
The delegate was not satisfied there is a real chance the applicant would face harm as a failed asylum seeker or returnee to Sri Lanka, or that the applicant’s profile gave rise to a risk profile that would result in him facing serious harm in Sri Lanka. The delegate found that even if the applicant is questioned by the authorities on his return to Sri Lanka, charged with an offence under the Immigration and Emigration Act and held for a short time until he is released on bail, this treatment would not constitute persecution for a reason outlined under s.5J(1)(a) of the Act. The delegate found that this treatment was due to laws which are generally applicable and enforced to achieve a legitimate state objective. The delegate found that the treatment did not constitute serious harm. The delegate found the applicant is not a person who engages Australia’s protection obligations on the basis of being a returnee or failed asylum seeker.
The delegate was not satisfied that there is a real chance of persecution of the applicant for one or more of the reasons mentioned in section 5J(1)(a) of the Act. The delegate found that the applicant was not a refugee under s.5H of the Act and that the criterion under s.36(2)(a) of the Act was not satisfied.
Assessment of complementary protection criterion
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 would 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.
The delegate found the applicant was not an excluded Fast Track applicant.
The Authority
On 16 June 2016 the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority identified that it had been provided with the documents considered relevant by the Department and that that included all the material that the applicant had provided to the Department in relation to the decision to refuse the protection visa. The letter indicated that the Authority would proceed to make a decision on the applicant’s case, on the basis of the information sent to it by the Department unless the Authority decided to consider new information.
The Authority identified in the letter that it could only consider new information in limited circumstances. Attached to the letter dated 16 June 2016 was a fact sheet and Practice Direction explaining the circumstances in which new information could be considered and providing a timetable for the provision of submissions or alleged new information.
On 19 July 2016 submissions were put by the applicant to the Authority. The Authority identified the applicant’s background and the outcome before the delegate.
Consideration of information before the Authority
The Authority identified that it had regard to the material referred to it by the Secretary of the Department under s.473CB of the Act. The Authority made reference to the submission received from the applicant which was apparently sent twice to the Authority. The Authority identified that the submission contained new information about the LTTE abducting the applicant and only releasing him after his father paid a ransom. The Authority noted that the applicant stated he did not disclose this at the time of the first interview for protection as he feared it would cause his application to be rejected. The submission states that the applicant did not inform the legal practitioner who assisted him in the preparation of the visa application that he had been to LTTE camps many times and forcibly detained, because his father advised him not to mention it.
The Authority noted that the new information related to events preceding the applicant’s arrival in Australia. The Authority took into account what occurred at the time of the first interview with the applicant. Given the explanations at that first interview, the Authority did not accept that after confirming the applicant’s understanding of the importance of providing information at the time of the interview that the applicant would withhold information relevant to his claims for engaging Australia’s protection when given the opportunity to fully articulate his fear of returning to Sri Lanka.
The Authority was not satisfied in relation to the matters set out in s.473DD(a) of the Act and did not consider the new information in the assessment.
The Authority identified the applicant’s claims and background. The Authority identified the inconsistencies in the information provided by the applicant being of such significance that the Authority found the applicant’s claims were not credible.
Assessment of refugee criterion
Consideration of incidents in 2009 and 2012
The Authority referred to the applicant providing a document dated April 2012 purporting to be an extract from a police report regarding the alleged abduction incident in 2009. The Authority referred to the document containing inconsistent information with that given by the applicant. The Authority referred to the questioning of the applicant at the interview about the discrepancy in the dates of the document and the dates of the incident and the applicant explaining the document was issued in 2012 because he thought a particular person put in another entry. The Authority did not accept that explanation as credible and noted country information that was the same DFAT report that was before the delegate and to which the delegate referred, albeit not in this context, that document fraud is prevalent in Sri Lanka.
The Authority observed that while it is possible that the document’s author misdescribed the relationship between D and the second person, given the credibility concerns about the applicant and the country information regarding document fraud, very little weight was placed on the document by the Authority. Due to the inconsistency in the information provided around the alleged incident, the authority did not accept that two relevant people were abducted in 2009.
The Authority found that the two persons were not abducted in 2009. The Authority did not accept the account given by the applicant of the chance encounter in 2012 involving persons associated with the 2009 incident as plausible including the alleged visit to the applicant’s house seeking the applicant’s whereabouts. The Authority found the 2012 encounter did not occur as claimed by the applicant. The Authority was not satisfied the applicant will face a real chance of persecution from Sri Lankan authorities, including the SLA, or any other paramilitary groups, on return to Sri Lanka now or in the reasonably foreseeable future.
Consideration of TNA involvement
The Authority found that the applicant’s fear of persecution due to TNA activities was not well-founded.
Consideration of fear related to being a Tamil
The Authority was not satisfied the applicant would be considered to have any real or imputed pro-LTTE or anti-government profile that would attract the attention of Sri Lankan authorities. The Authority was not satisfied that the applicant will face a real chance of persecution from Sri Lankan authorities due to his race now or in the reasonably foreseeable future.
Consideration of the applicant’s illegal departure and failed asylum seeker
The Authority referred to the illegal departure by the applicant and that the applicant may be charged under the Immigration and Emigration Act and that there is a chance he will be held in detention for a short period. The Authority found the brief period of detention did not rise to the level of threat to his life or liberty, or to significant physical harassment or ill-treatment or any other form of serious harm to the applicant.
The Authority referred to the fact that if the applicant pleads guilty, he will be required to pay a fine and will be subsequently released and if he pleads not guilty, he will be released on his own personal surety. The Authority was not satisfied that the payment of the fine amounts to serious harm and was not satisfied that the payment of a fine, being held in detention for the short period in question cumulatively amounts to serious harm.
The Authority found that the process and treatment to which the applicant would be subject under the Immigration and Emigration Act is not discriminatory on its face, nor is it applied in a discriminatory manner. The Authority found it is a law that applies to all Sri Lankans and as a generally applicable law, will not ordinarily constitute persecution because the application of the law does not amount to discrimination. The Authority found that the treatment the applicant will face as a consequence of the application of the Immigration and Emigration Act is not persecution within the meaning of the Act.
The Authority found that the applicant would not be imputed with separatist or anti-government dissident beliefs by the authorities because of his extended residence in a Western country or imputed asylum seeking there, either individually or cumulatively. The Authority found the applicant does not face a real chance of persecution from Sri Lankan authorities either as a failed asylum seeker or as a returnee from the West or for any other reason.
The Authority found that the applicant does not have a well-founded fear. The Authority found the applicant did not meet the requirements of s.5H(1) of the Act. The Authority found that the applicant did not meet the criterion under s. 36(2)(a) of the Act.
Assessment of complementary protection criterion
The Authority was not satisfied there is a real risk the applicant will face significant harm during the investigation process or while being held at the airport. The Authority noted that the applicant may be subjected to poor prison conditions during his detention, but country information confirms this is due to overcrowding, poor sanitation and lack of resources. The Authority noted that it did not amount to the death penalty or arbitrary deprivation of life or torture. The Authority found there is no intention to inflict pain or suffering extreme humiliation. The Authority found that the circumstances, being the poor prison conditions to which the applicant may be subjected, do not of themselves, constitute significant harm as defined by the Act. The Authority was not satisfied the applicant will face a real risk of significant harm during the brief period spent in detention.
The Authority found that the questioning, imposition of a fine and potential of being held in detention, individually or cumulatively, does not amount to the death penalty, arbitrary deprivation of life, torture or that there is an intention to inflict pain or suffering or extreme humiliation. The Authority was not satisfied that that process amounts to significant harm as defined by the Act. The Authority found that the applicant does not face a real risk of suffering significant harm.
The Authority found 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 that he will suffer significant harm. The Authority found that the applicant did not meet the criteria under s.36(2)(aa) of the Act.
Before this Court
The grounds in the amended application are as follows:-
Ground 1
The Authority failed to act in accordance with s 473DE and give to the applicant country information regarding document fraud in Sri Lanka.
Particulars
(a) The delegate found (CB 326 at [50]) of the decision record as follows:
I note that the applicant has provided a document purporting to be a police report and English translation regarding this incident. Despite being about an incident that allegedly occurred on 06 May 2009 the document is dated 27 April 2012. The does have any official letterhead which could be expected of a document or its translation and as such place no weight on it supporting the applicant 's claims regarding this incident,
(b) The delegate did not consider whether the document was fraudulent.
(c) At (CB 380; IAA at[ l4]) the reviewer found as follows:
When question at the SHEV interview about the discrepancy in dates between the document and the date of the alleged incident, the applicant explained that the document was issued in 2012 because he thought D 'put in another entry'. I do not accept this as credible and note that country information that document fraud is prevalent in Sri Lanka. While it is possible that the document 's author misdescribed the relationship between D and the second person, given my credibility concerns and the country information regarding document fraud, I place very little weight on the document.
(d) The country in formation on document fraud in Sri Lanka did not form part of the reasons for the decision of the delegate, however it did in the reviewer's decision as part of the reason for not accepting the central claim that his uncle and wife were abducted and the information has been used adversely to assess the applicant's credibility
(f) The Applicant has been denied procedural fairness regarding the documents in respect of his central claims.
(g) The Authority thereby committed jurisdictional error.
Ground 2
The Authority erred on question of intention in respect of the Applicant's detention regarding Applicant's illegal departure and thereby committed jurisdictional error. The Tribunal in consideration of the intentional aspects of the detention and impliedly I expressly referred intentions of the players carrying out detention (and has misconstrued the provisions at [421 - [43)) and erred in construction of the expression “intentionally inflicted” in the definitions of "torture and “cruel or inhuman treatment or punishment" in s5(1) of the Migration Act 1958 (Cth) (Migration Act).
Particulars
(a) The Applicant would be detained for leaving country illegally.
(b) The Tribunal accepted that the Applicant may be detained (IAA at [41]) for up to a number of days pending bail; in poor conditions (IAA at [41]).
(c) The Tribunal 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 [41] - [43] 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) The Authority did not consider the intentional aspects of the detention and did not consider 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
(f) The Authority applied the wrong test or asked itself wrong questions when it found that the Applicant would not suffer significant harm.
(a) The Authority committed jurisdictional error.
On 17 November 2016, a Registrar of this Court made orders fixing this matter for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.
Consideration
Ground 1
Mr Kumar of counsel, submitted that as the Authority considered the DFAT information regarding the prevalence of fraud in Sri Lanka, even though this document was before the delegate, the particular information as to fraud was not referred by the delegate, and that this constituted new information. Counsel argued that this meant that in respect of that new information, the Authority failed to act in accordance with s.473DE of the Act.
I accept the submissions of the first respondent that the issue of the unreliability of the document was clearly raised before the delegate. The delegate referred to the same DFAT report, albeit in a different context. I do not accept that the prevalence of fraud in the DFAT report was new information falling within s.473DE of the Act. No arguable case of jurisdictional error is disclosed by Ground 1.
Ground 2
In relation to Ground 2, Mr Kumar of counsel submitted that because there is a decision currently under appeal to the Full Court of the Federal Court of Australia in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69, there is an arguable issue that the Authority had erred on the question of intention regarding the applicant’s detention as a consequence of his illegal departure. This is a case where the Authority made clear findings in relation to the application of the Immigration and Emigration Act and made clear findings as to the want of any intention in respect of the conditions to which the applicant would be exposed. I do not accept that Ground 2 identifies any arguable jurisdictional error.
Mr Kumar of counsel took into account the reference in the submissions by the solicitor for the first respondent to the certificate that was provided in the present case. That certificate was one referring to a particular document in respect of the identity of the applicant. It was in those circumstances that Mr Kumar of counsel did not press a further alleged arguable ground concerning the certificate. That was a proper course for counsel to take and on the face of the certificate in the present case, there is no arguable case of jurisdictional error in respect of the certificate.
On the face of the certificate, it is valid and the procedure under Part 7AA of the Act for the conduct of the review is different to that considered in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. The provisions of Part 7AA of the Act and in particular, s.473DA of the Act, exclude the common law procedural fairness requirements in respect of the certificate of the kind found to constitute error in the case of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081.
I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am satisfied that the amended application fails to disclose an arguable case. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under rule 44.12 of the Federal Circuit Court Rules 2001.
Conclusion
The amended application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 24 March 2017
CORRECTIONS
Cover Sheet and Orders: Page 2, updated applicant’s representative’s information.
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