CKM16 v Minister for Immigration

[2018] FCCA 3076

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKM16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3076

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (Authority) affirming decision not to grant safe haven enterprise visa – whether Authority made jurisdictional error because applicant had not been provided with audio recording of entry interview – whether the Authority considered country information contained in untranslated documents submitted to the Authority – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2A), 473CB, 473DD, 476

Cases cited:

BLA16 v Minister for Immigration and Border Protection [2018] FCCA 2808

Applicant: CKM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2349 of 2016

Judgment of: Judge Manousaridis

Hearing date: 24 October 2018

Date of Last Submission: 24 October 2018

Delivered at: Sydney

Delivered on: 31 October 2018

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent: Ms K Hooper of Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2349 of 2016

CKM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Sri Lanka and a Tamil, applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV).

Claims for protection

1. The applicant stated his claims for protection on a number of occasions. It will be convenient to refer to the claims he made in a statement dated 6 November 2015 (Statement) that formed part of his application for a SHEV.[1] The applicant there stated as follows:

   [1] CB70-74

   a)Until 1995 the applicant lived in Jaffna. His father was a fisherman but the applicant heard from his father that before 1995 the applicant’s father had been beaten up by the Sri Lankan Army (SLA) because the he was involved in a group similar to the Tamil National Alliance (TNA), and would not participate in meetings organised by the SLA. That resulted in the applicant’s father being afraid to fish. The SLA constantly harassed the applicant and his family and asked for money.

   b)In 1993 the applicant began to work as a fisherman with his uncle because the SLA would not allow the applicant’s family to continue their studies, and the applicant’s father was too scared to work. “Within two months” the SLA shot another of the applicant’s uncles when he was at sea fishing.

   c)The applicant left Jaffna in 1995 and went to Vanni where he learned karate, acquiring a black belt by 2002. In that year he returned to Jaffna but he was there accused by the SLA of teaching karate to the Liberation Tigers of Talim Eelam (LTTE).

   d)Sometime in late 2002 the SLA or the Criminal Investigation Division (CID) arrived in a white van and told the applicant to go with them to the army camp at Annai Koddai. The applicant refused to go but he went there the following day. He stayed there for two days where he was asked whether the applicant trained the LTTE; and the applicant “got beaten a lot”. The applicant was released but he promised to return whenever instructed to do so.

   e)In early 2003 the SLA again summoned the applicant to the army camp. The SLA again asked the applicant whom he had trained, and beat him. The applicant was released after two days.

   f)At the end of 2005 or in early 2006, after the applicant married, he went back to Vanni because he was scared the SLA would call him again, and to escape the constant harassment by the SLA. After war broke out in 2006 the applicant moved a number of times to areas the Sri Lankan government announced to be safe zones. When the SLA took over in February 2009 the applicant, his pregnant wife, and their child were taken to an army camp and detained until August 2009.

   g)The applicant then returned to his wife’s village in Jaffna. The SLA arrived and asked the applicant why he had returned to the mainland in 2006, having come back from Jaffna in 2002. The SLA suspected the applicant had prior knowledge of the war breaking out.

   h)From 2002 to 2006 the applicant was involved with the TNA. He used to organise the group meetings and the logistics of the meetings, such as sound and stage. The applicant also worked for the Red Cross in 2002 and 2003 when he lived in Jaffna.

   i)In July 2012, after having been given in the usual way a daily pass by the SLA to go fishing, the applicant’s boat capsized. That prevented the applicant from reporting back to the SLA on that day. When the applicant returned to land on the following day the SLA questioned the applicant. That was the final harassment from the SLA the applicant could not stand; so he decided to leave Sri Lanka by boat.

   j)The applicant felt discriminated against because he is a Tamil and when he was interrogated and beaten he was not given an interpreter. He is scared to return to Sri Lanka because of the SLA, which has a huge presence in Sri Lanka.

   k)After arriving in Australia, the applicant’s family were contacted by the CID on three occasions looking for the applicant. The CID asked how and when the applicant had gone, and they spoke to the applicant’s wife in a threatening manner. After the second visit the applicant’s brother left out of concern for his safety.

Authority’s reasons

1. The Authority accepted the following:

   a)The applicant’s father was beaten by the SLA in 1993 for not participating in SLA organised meetings; the applicant’s family were harassed by the SLA who asked for money; one of the applicant’s uncles was shot at sea by the SLA; he was displaced to Vanni in 1995; he studied karate in Vanni obtaining a black belt in 2002; and he returned to Jaffna in 2002.[2]

   b)Although the applicant had no links with the LTTE, when in Vanni from 2006 to 2009 the LTTE forced the applicant to do work; and that the applicant and his wife were exposed to displacement and airstrikes when fighting resumed in 2006.[3]

   c)From 2008 the applicant taught karate to civilians at a school for which he received money.[4]

   d)In 2009 the applicant and his wife were displaced and taken to an IDP camp (that is, an internally displaced persons’ camp) where the SLA questioned the applicant about possible links he may have had with the LTTE, and in particular about karate training for the LTTE.[5]

   e)The applicant, along with many Tamils in the north of Sri Lanka, faced a level of harassment, including being monitored, and stopped and questioned from time to time; that he was detained by the SLA on two occasions in late 2009 or early 2010, and beaten on one of those occasions.[6]

   f)In July 2012, after he failed to report back at the required time under his daily fishing pass because of his boat capsizing, the applicant was detained, questioned about being an LTTE member, kicked by the SLA, and released after a few hours once the Sinhala speaking fishermen from the village explained what happened; and although the SLA may have initially suspected the applicant of some kind of LTTE involvement, the SLA released him because the applicant was no longer under suspicion.[7]

   g)The applicant was a supporter of the TNA from 2002 and provided some assistance with meeting preparations “and the like”, and it is plausible the applicant may have been beaten by the SLA between 2002 and 2006 while supporting the TNA’s activities.[8]

   [2] CB201, [13]

   [3] CB202, [17]

   [4] CB202, [18]

   [5] CB203, [20]

   [6] CB204, [26]

   [7] CB204, [28]

   [8] CB205, [33]

2. The Authority, however, rejected as an exaggeration the applicant’s evidence that he was detained, questioned and beaten by the SLA three times during late 2009 and early 2010.[9] The Authority also did not accept the applicant’s claims that the CID visited his family after the applicant arrived in Australia. The Authority relied on the applicant’s not having mentioned these visits in a statement he made in 2013, the SLA having released him in 2012 because he was no longer under any suspicion, and that it was implausible that the CID would make three visits to the applicant’s family to inquire about where the applicant went.[10]

   [9] CB204, [26]

   [10] CB205, [37]

3. Having made these findings the Authority considered the applicant’s claims against the refugee criterion provided for by s.36(2)(a) of the Act, and it did so by considering whether the applicant had a well-founded fear of persecution because he is a Tamil fisherman from Jaffna who was suspected of being involved with the LTTE, he was involved with the TNA, he was involved with the Red Cross, he is a failed asylum seeker, and he illegally departed Sri Lanka. The Authority was not satisfied the applicant had a well-founded fear for any of these reasons.

   a)As for the applicant’s being a Tamil fisherman from Jaffna who was suspected of being involved with the LTTE, the Authority relied on, among other things, Maithripala Sirisena having defeated President Mahinda Rajapaksa in an election held on 8 January 2015 where there was high voter turnout, and where the Tamil vote was significant in Sirisena’s victory;[11] the TNA has 16 members or parliament, it now formally leads the opposition, and it holds the majority of seats in the Northern Provincial Council;[12] although Sinhala remains the official language of Sri Lanka, in 2012 the Sri Lankan government introduced the Trilingual Policy overseen by the Official Languages Commission;[13] country information that showed that monitoring and harassment of Tamils has decreased under the Sirisena government;[14] country information that showed that a Tamil’s originating from a formerly LTTE-controlled area did not by itself give rise for international refugee protection;[15] and, although the applicant had been detained, questioned, and mistreated by the Sri Lankan authorities, the applicant does not have a profile that would place the applicant  at risk of harm.[16]

   b)As for the applicant’s being involved with the TNA, the Authority relied on, among other things, the TNA’s now being the official opposition in Sri Lanka, its holding 16 seats in Parliament, the TNA holding a majority of the seats in the Northern Provincial Council, the TNA’s supporting Sirisena gaining the presidency, and the applicant’s not having suffered harm after 2006 because of his support for the TNA.[17]

   c)As for the applicant’s being a failed asylum seeker who had illegally departed Sri Lanka, the Authority accepted that on his return to Sri Lanka it is likely the applicant would be charged under the Sri Lankan Immigration and Emigration Act 1949, and detained and questioned at the airport for possibly up to 24 hours before being conveyed by police to the nearest Magistrate’s Court; if not dealt with on the spot because the applicant were to plead guilty, the Court would release the applicant unconditionally or be bailed to return to Court at a later day; if a Magistrate is not available because, for example of a weekend or public holiday, the applicant wold be held in a nearby prison for a short time; and the likely penalty that will be imposed on the applicant would be a fine.[18]

   [11] CB206, [42]

   [12] CB206, [42]

   [13] CB207, [43]

   [14] CB207, [45]

   [15] CB208, [52]

   [16] CB209, [55]

   [17] CB209-210, [58]-[59]

   [18] CB210-213, [62]-[78]

4. The Authority then considered the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Authority repeated the effect of the findings it made when considering the applicant’s claims against the refugee criterion, but additionally considered whether the applicant’s likely sort period of incarceration on his return would constitute “significant harm” as defined in s.36(2A) of the Act.[19] The Authority concluded there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.[20]

   [19] CB213-214, [81]-[89]

   [20] CB215, [90]

Grounds of application

1. The application contains the following grounds of application (errors in original):

   1.Identifying wrong issues.

   2.Ignoring relevant material

   3.relying on irrelevant material.

   When I requested the recording of my initial interview with DIBP, I was sent the wrong CD First. It was somebody elses interview. Hence I was handicaped, when doing my application.

   I am also worried DIBP too would have listened to the same (wrong CD) and taken the negative results and this was carried through by the IAA.

2. The applicant, who is not legally represented, made submissions to me. Much of what the applicant said restated the effect of the claims he made in support of his application for a SHEV and before the delegate. The applicant said that when he had lived in an LTTE controlled area “we were free like here”, but after the applicant went to SLA controlled areas problems arose because the applicant and his family are Tamils. The applicant also said that when he was interrogated in Sri Lanka no interpreters had been provided; that even after he was released in 2009 the inquiries and interrogations continued; and all the countries in the world know about the problems of Tamils, but no one comes forward “to protect us”.

3. None of these matters disclose any jurisdictional error by the authority; they are an appeal to the merits of the applicant’s claims for protection. As I informed the applicant, this Court does not have jurisdiction to determine whether the applicant is entitled to a SHEV; the Court’s jurisdiction is limited to considering on the grounds relied by the applicant whether the Authority considered the applicant’s case according to law.

4. I then directed the applicant’s attention to the grounds stated in the application.

Ground 1 of application

1. In relation to ground 1 the applicant, as I understood him, said that he had been sent the wrong audio recording of the hearing before the delegate (TPV interview); his representative requested the Authority allow the applicant to provide submissions after he were to obtain the audio recording; but the applicant received the audio recording after the Authority made its decision.

2. Ms Hooper, who appeared for the Minister, submitted that when considering the applicant’s submissions, it is necessary to distinguish between initial arrival interview, and the interview before the delegate. Ms Hooper then directed me to the following evidence:

   a)By letter dated 5 July 2016 the Authority informed the applicant that the Minister’s refusal to grant the applicant a protection visa had been referred to it, and that the Department of Immigration and Border Protection (Department) provided the Authority with all documents it considered to be relevant to the applicant’s case, and the Authority attached its Practice Direction.[21] Paragraph 25 of the Practice Direction states that any new information the Authority has not requested must be provided within 21 days of the date on which the case was referred to the Authority.

   b)On 21 July 2016 a migration agent sent an email to the Authority stating that the applicant engaged the agent “yesterday”.[22] The agent stated he heard the audio recording but it did not relate to the applicant. The email attached a request (FOI request) for access to documents under the Freedom of Information Act 1982 (Cth) directed to the Authority requesting the “[c]orrect CD of the interview before the delegate and at the time of detention – first entry to Australia”, and a “[c]opy of country information relied on by the delegate”. The agent concluded his email by requesting the Authority extend the time limit for furnishing additional information “as 3 weeks from the date of delivery of the correct CD relating to the visa applicant”.

   c)According to a “Case File Note”,[23] on 22 July 2016 the applicant telephoned the Authority and, with the assistance of a Tamil interpreter, had a conversation with an officer of the Authority. The applicant stated he had been “sent an entry interview for another applicant and said that his representative has lodged an FOI seeking a copy of his entry interview and country information relied upon by the department”. The applicant said he required these as soon as possible. The officer confirmed the Authority had received the FOI request, but noted the Authority did not have the entry interview, and is unable to provide that to him. The officer also stated “the Department may also not have a copy of this”. Finally, the officer said the Authority will try to action the applicant’s request for the other documents, noting, however, that the Authority itself does not produce country information documents but may need to contact other departments. (The basis of the officer’s statement that the Department may not have an audio recording of the entry interview appears to be a letter dated 29 June 2016 from the Department to the Authority. It states that “[e]xtensive searches were undertaken to locate the Entry interview audio recording but unfortunately, it is not in the Department’s possession”.[24] The letter noted, however, that “a transcript is available and has been provided for your reference”.)

   d)On 22 July 2016 the Authority sent by email a letter to the applicant’s agent declining the agent’s request made on 21 July 2016 for further time to provide information.[25] The Authority said it would not make a decision before 2 August 2016, but any new information the Authority may receive after 26 July 2016 may be considered.

   e)According to another “Case File Note”,[26] on 26 July 2016 an officer of the Authority contacted the applicant’s agent and told the agent the Authority would be able to provide “the TPV interview and country information relied upon [by] the DIBP delegate”. The officer also stated that the “remainder of the FOI request (ie – entry interview) would be transferred in full to DIBP for action”.

   f)On 27 July 2016 the Authority sent an email to the applicant’s agent attaching “country information and the TPV interview recording released outside of FOI for” the applicant.[27]

   g)On 8 August 2016 the applicant’s agent sent an email to the Authority noting that “[w]e are yet to receive the recording for entry interview and other information requested from the department”, but based on the delegate’s decision and country information, “we make the following submissions”.[28] That is a reference to a statutory declaration made by the applicant which contains submissions in relation to the delegate’s decision.[29] The email also attached “additional information regarding the plight of failed asylum seeker returnees (we have requested for a translated copy which is yet to be provided)”. That is a reference to 7 pages of material downloaded from the Internet.[30] The text is not in English.

   [21] CB153-165

   [22] CB167

   [23] CB172

   [24] SCB328

   [25] CB175

   [26] CB176

   [27] SCB329

   [28] CB179

   [29] CB180-185

   [30] CB186-192

3. This evidence does not accord with what I understood the applicant said to me. The evidence reveals that the applicant received an incorrect audio recording of the TPV interview; the applicant contacted the Authority and informed it that his agent had lodged an FOI request for an audio recording of the entry interview, but the Authority told him it did not have such audio recording and the Department also might not have such audio recording; the applicant, through his agent, requested the Authority grant him three weeks from the time the applicant would receive an audio recording of the TPV interview and the entry interview; and the Authority gave the applicant an audio recording of his interview by the delegate, but the Authority did not have an audio recording of the entry interview, although it had a transcript of that interview.

1. The question is whether this evidence discloses any jurisdictional error by the Authority. In my opinion it does not. The Authority was under no obligation to search for, or otherwise to provide to the applicant, the audio recording of the entry interview or of the TPV interview or country information on which the delegate relied. In the event, the Authority did respond to the applicant’s agent inquiry, and provided to the applicant’s agent the audio recording, and country information. Even if the Authority was under some obligation to provide information to the applicant, it could not have breached such obligation by not giving to the applicant something the Authority did not possess.

2. Perhaps it could be said that the audio recording of the entry interview was information the Secretary of the Department was required under s.473CB of the Act to provide to the Authority, and by failing to provide it the Authority’s exercise of its jurisdiction miscarried.[31] There would be two difficulties with such contention. First, on the evidence before me the Department did not, at least at the time the Secretary provided the relevant material to the Authority, possess an audio recording of the entry interview. Second, even if the Department once did possess an audio recording of the entry interview, the evidence before me suggests that extensive searches had been undertaken by the Department to locate such audio recording but without success. Section 473CB of the Act cannot reasonably be construed as importing an absolute obligation on the Secretary to provide documents to the Authority whether or not such documents have been lost.

   [31] I considered at some length the construction of s.473CB of the Act in BLA16 v Minister for Immigration and Border Protection [2018] FCCA 2808

3. For these reasons, ground 1 fails.

Ground 2 of application

1. In relation to ground 2 the applicant submitted that the relevant material the Authority ignored was the untranslated country information the applicant’s agent provided to the Authority by the email sent on 8 August 2018 to which I have previously referred.

2. There are two things that may be said about this. First, the Authority was under no obligation to arrange for the translation of the country information. That is made clear in paragraph 25 of the Authority’s Practice Direction, and was appreciated by the applicant’s agent who, in his email to the Authority sent on 8 August 2016, stated “we have requested for a translated copy which is yet to be provided”.[32]

   [32] CB179

3. Second, the Authority did refer to the country information in that part of its reason dealing with new information. The Authority identified the extracts from country information referred to in the submissions made by the applicant’s agent on 8 August 2016. That included what the Authority described as “material, in Tamil, from newspapers and social media from 11 July 2016”.[33] In relation to that material the Authority made the following observations and findings about the untranslated country information:[34]

   The only new information that post-dates the delegate making a decision is the material from 11 July 2016. The applicant has explained that the un-translated material consists of articles about the fate of returned failed Tamil asylum seekers from the east/former LTTE controlled areas. The information is untranslated and there already was current information before the delegate, and therefore before the IAA, about incidents involving failed Tamil asylum seekers on their return to Sri Lanka.

   Based on the above, I am not satisfied that there are exceptional circumstances to justify considering the new information.

   [33] CB199, [6]

   [34] CB199-200, [7], [8]

4. The claim ground 2 may be taken to raise is that the Authority misconstrued or misapplied s.473DD of the Act. That is how the Minister has understood ground 2. The Minister submits the Authority engaged with what the Minister submits was the very limited argument the applicant advanced as to exceptional circumstances, and otherwise correctly understood and considered s.473DD of the Act. I agree. The untranslated documents were not “credible information which was not previously known” within the meaning of s.473DD(b)(ii) because the documents contained country information; and the Authority noted that the untranslated documents were created after the date on which the delegate made the decision rejecting the TPV. The Authority then considered whether there were exceptional circumstances to justify considering the information and, for reasons that were reasonable open to it, decided there were no exceptional circumstances. The Authority made no error in proceeding this way.

5. Ground 2, therefore, also fails.

Ground 3

1. The applicant made no submissions in relation to ground 3. In particular, he was unable to identify material the Authority took into account that was irrelevant. For that reason, ground 3 also fails.

Conclusion and disposition

1. The applicant has not succeeded on any of the grounds set out in the application or on any of the submissions he made to me at the hearing. I propose, therefore, to order that the application be dismissed. I will deal with the question of costs when I pronounce my order dismissing the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  31 October 2018