CLJ16 v Minister for Immigration
[2017] FCCA 181
•13 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLJ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 181 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka for various reasons – applicant disbelieved in important respects and other fears found not to be well founded – whether the Authority overlooked relevant material or otherwise fell into error considered – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 5H, 36, 46A, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 477 |
| Cases cited: AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 CDR16 v Minister for Immigration & Anor [2016] FCCA 2759 Minister for Immigration v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 Minister for Immigration v SZRKT (2013) 212 FCR 99; [2013] FCA 317 |
| Applicant: | CLJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2363 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 August 2017 |
| Date of last submissions: | 7 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr L Dennis of Minter Ellison |
ORDERS
The application filed on 2 September 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2363 of 2016
| CLJ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 12 July 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa known as a Safe Haven Enterprise Visa.
The following statement of background facts is derived from the submissions of the Minister filed on 27 January 2017.
The applicant is a citizen of Sri Lanka, who arrived in Australia on 17 August 2012 as an unauthorised maritime arrival. On 13 August 2015, the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act), allowing the applicant to make a valid application for a specified visa[1]. The applicant subsequently applied for the protection visa and that application was received by the Minister’s Department on 26 October 2015[2].
[1] Court Book (CB) 126-127
[2] CB 36
On 15 June 2016, the delegate refused to grant the applicant the protection visa[3]. The delegate’s decision was a “fast track reviewable decision” and was therefore referred by the Minister to the Authority for review. On 12 July 2016, the Authority affirmed the decision under review[4].
[3] CB 126
[4] CB 173
Applicant’s claims
The applicant claimed that he was a Tamil of Muslim faith from the Eastern Province of Sri Lanka. He claimed to fear harm if returned to Sri Lanka because:
a)he complained about human rights abuses and sought an investigation into the death of his brother;
b)he is a Tamil Muslim fisherman;
c)he will be imputed with a pro-Liberation Tigers of Tamil Elam (LTTE) or anti-government political opinion because he is a Muslim Tamil and/or had a close family member suspected of being in the LTTE;
d)he will be a failed asylum seeker; and
e)he departed Sri Lanka illegally.
In support of those claims, the application recounted the following events:
a)he was interrogated by Sri Lankan authorities on suspicion of being connected to the LTTE, due to his profile as a Tamil speaking Muslim with close male family members who have links to the LTTE;
b)in 1993, the Sri Lankan navy shot his friend because he was suspected of having LTTE connections;
c)in July 2003, his brother was drinking in a bar when he refused to pay a bribe to the Sri Lankan army, and the following day he was shot dead;
d)a witness saw the shooter ride into an army camp, so the applicant went to the camp to complain. The witness was killed, the applicant suspects by the army;
e)the applicant claimed that he was detained, beaten, interrogated and threatened by the army over the investigation into the death of his brother, and that he was threatened on two more occasions between 2003 and 2006;
f)in May 2006, he took his family to India to escape the civil war and lived there in a UNHCR refugee camp until he voluntarily returned to Sri Lanka in May 2010;
g)in December 2010, he was detained and interrogated by the army, who accused him of training as a fighter in India. A friend secured his release and he was not targeted again; and
h)the applicant was fearful that he would be targeted as a fisherman and killed like his friend, so he left Sri Lanka for Australia. The army visited his home looking for him after his departure.
Authority Decision
The Authority rejected the applicant’s claims on the basis of adverse credibility findings and because those claims did not give rise to a real chance of serious harm or a real risk of significant harm.
With respect to the claimed death of the applicant’s brother, the Authority found that there were material inconsistencies between the applicant’s evidence at the protection visa interview and the statutory declaration provided with his protection visa application and the supplementary statement provided to the delegate[5]. The Authority was not satisfied that such inconsistencies could be explained by errors on the part of the applicant’s former migration agent[6]. Further, the number and material nature of the inconsistencies caused the Authority to conclude that the applicant was not a credible witness[7]. As a result, the Authority did not accept that the applicant’s brother was killed in the manner claimed, that the applicant made any complaint to the army, that any witness was killed, that the applicant was detained or threatened, or that the army contacted his family after he left Sri Lanka[8]. The Authority found that the applicant manufactured these claims as a means to apply for protection, and it was not satisfied that the applicant faced a real risk of serious harm, either now or in the reasonably foreseeable future, because he made a complaint about the shooting of his brother or a complaint about human rights abuses[9].
[5] CB 177 at [17]
[6] CB 177 at [18]
[7] CB 177 at [18]
[8] CB 177-178 at [19]
[9] CB 178 at [20]
With respect to the applicant’s claims to have been harmed as a Tamil Muslim fisherman, the Authority accepted that the applicant is a Tamil Muslim who had worked in the past as a fisherman, and who would work again as a fisherman if returned to Sri Lanka. However, on the basis of country information and the applicant’s own evidence that Tamil Muslims are now better protected, the Authority did not accept that there was a real chance that the applicant would face serious harm as a Tamil Muslim fisherman[10].
[10] CB 178 at [22]-[24]
With respect to the applicant’s claims that he would be imputed with a pro-LTTE or anti-Sri Lankan government political opinion as a Tamil Muslim and/or as a person with close family members suspected of being in the LTTE, the Authority accepted that the applicant had some relatives who were LTTE members, but did not accept that the applicant had any close family members suspected of being in the LTTE[11]. The Authority also accepted that the applicant would assist the LTTE with food and other goods and by removing injured and dead members[12]. Having considered country information, the Authority found that the applicant’s past links to the LTTE were remote and minor and would not be sufficient to make him a person of concern to the Sri Lankan authorities[13]. For these reasons, the Authority was not satisfied that the applicant would face a real chance of serious harm due to an imputed pro‑LTTE opinion[14].
[11] CB 179 at [26]
[12] CB 179 at [26]
[13] CB 179-180 at [27]-[28]
[14] CB 180 at [29]
The Authority accepted that, if the applicant returned to Sri Lanka, he would be considered a failed asylum seeker. However, on the basis of country information, the Authority was not satisfied that the applicant had a profile which would put him at risk of serious harm on this basis[15].
[15] CB 180 at [31]-[32]
With respect to his claimed illegal departure, the Authority noted that the applicant made a new claim in his protection interview that the army suspected him of people smuggling, but it found that this claim was fabricated and not credible[16]. The Authority accepted that the applicant departed Sri Lanka illegally and found that he would likely be charged and fined, and would face only a brief period of detention on return. The Authority found that this process would be a result of a law of general application and did not accept that the likely short detention of the applicant, likely questioning and likely imposition of a fine would constitute serious harm[17].
[16] CB 180-181 at [33]-[34]
[17] CB 181-182 at [38]-[40]
For these reasons, the Authority was not satisfied that the applicant had a well-founded fear of persecution due to his race, religion, nationality, membership of a particular social group and/or political opinion either now or in the reasonably foreseeable future. He thus he did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act or satisfy s.36(2)(a) of the Migration Act[18].
[18] CB 182 at [41]-[42]
With respect to complementary protection, the Authority did not accept that any questioning, brief detention, fine or penalty which the applicant would face on return to Sri Lanka and the poor prison conditions to which he may be briefly subjected, constituted significant harm[19]. Considering the applicant’s circumstances individually and cumulatively, the Authority was not satisfied that he faced a real risk of significant harm, and therefore found that he did not satisfy s.36(2)(aa) of the Migration Act[20].
[19] CB 182-183 at [46]
[20] CB 183 at [47]-[48]
The current proceedings
These proceedings began with a show cause application filed on 2 September 2016. The applicant continues to rely upon that application. It was filed a short time outside the period prescribed in s.477(1) of the Migration Act. Having regard to the short delay, the applicant’s explanation for that delay and the grounds of review which on their face appeared arguable, on 2 February 2017 I granted an extension of time pursuant to s.477(2) of the Migration Act.
There is one material ground of review advanced in the application:
I believe the IAA decision maker made errors of law, did not consider my claims fully. The grounds of appeal have been mentioned above under “Grounds of application for extension of time”
Under the grounds of application for an extension of time, the applicant relevantly asserts:
2.I believe there are merits in my case for the following reasons;
(a)At paragraph [18] of the IAA decision record it is stated “I note the copy of the declaration in the referred material is not sworn and bares no notation that the contents were interpreted back to the applicant before he signed it”. I wish to state that the IAA at paragraph [18] is correct as not only did the unsigned unsworn [purported] statutory declaration which was prepared by a person provided to me by the government (i.e. a representative from RACS) be interpreted back to me in Tamil, I also wish to state that I had difficulty understanding the Tamil interpreter who assisted the person who prepared my statement.
(b)I believe the person who assisted in preparing my statement in November 2015 [17] in all likelihood was not qualified (i.e. not a Registered Migration Agent) to have interviewed me. The interview with the person who assisted me was conducted in a hurried manner I was rushed. A qualified Agent / Legal Practitioner would not have made the kind of errors in a statement that has been pointed out in the IAA decision record at [18].
(c)At [26] the IAA states “There is little detail to these claims in his declaration or his statement.” It is submitted that one of the reasons there in fact is “little detail” with regard to aspects / integers of my claims is due to the unfairness caused to me by the person who assisted me in the preparation of the document which contained my claims.
(d)The finding at paragraph [38] which states and considers me to be a “low profile illegal departee” / “ordinary illegal departee” is an inference that is infected with jurisdictional error as such terms are based on the subjective opinion / view of the IAA decision maker. As mentioned above the November 2015 statement is bound have several errors for reasons outlined above, hence considering me to be a low profile illegal departee” / “ordinary illegal departee” is arguably erroneous.
(errors in original)
The application is supported by an affidavit filed with it, which I received as a submission.
I have before me as evidence the court book filed on 1 December 2016.
At the trial, the applicant tendered a bundle of documents which I marked for identification[21]. The applicant asserted that he had provided these documents to the Minister’s Department. There was a question whether those documents were indeed provided to the Department and, if so, whether they were taken into account by the delegate or the Authority.
[21] MFI A1
I requested further submissions from the Minister on that issue and gave the applicant a right of reply. The Minister filed further submissions on 7 September 2017, together with an affidavit by Usipua Talele Soliola made on 7 September 2017, which I have received. The applicant did not respond.
Consideration
I accept from the affidavit of Ms Soliola that the documents comprising MFI A1 do not appear on the Authority’s file. I therefore infer that the documents did not form part of the review material and cannot be considered relevant to the application for judicial review[22].
[22] Minister for Immigration v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [52]; Minister for Immigration v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [122]
I agree with the Minister’s submissions concerning the grounds of review advanced.
The application essentially raises two grounds of review, one under “grounds of application” and one under “grounds of application for extension of time” (which is also reproduced in the affidavit filed in support of the application).
The ground set out under “grounds of application” states that the applicant believes that the Authority “made errors of law, did not consider my claims fully”. The applicant has not particularised what errors of law he contends occurred, nor what claims he contends the Authority did not consider. The Authority set out the applicant’s claims[23], considered each of them[24], and made findings that were open to it for the reasons it gave. This court cannot review the merits of the Authority’s decision[25].
[23] CB 175-176 at [12]-[13]
[24] CB 176-182 at [16]-[41]
[25] Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35–36; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272
The ground set out under “grounds of application for extension of time” contends that the applicant’s claims were not properly put forward by the migration agent who assisted him with his protection visa application. This was because he had difficulty understanding the interpreter who assisted with the preparation of his unsworn statutory declaration, the person who assisted with the preparation of the unsworn statutory declaration was not a qualified migration agent, the agent hurried the applicant through the preparation of the statement, and that the reason for a lack of detail with regard to integers of the applicant’s claims and errors in his statutory declaration (as found at [26] by the Authority) was due to the conduct of those assisting him in preparing it.
It is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts[26]. Neither the Minister nor the Authority are under any responsibility or obligation to assist in establishing a claim[27]. The Authority was entitled to proceed on the basis that the claims in the applicant’s statement and unsworn statutory declaration were the applicant’s actual claims, and the applicant had the opportunity to discuss those matters with the delegate at the interview conducted in relation to the application[28]. While the Authority did not hold a hearing at which it invited the applicant to give evidence and present arguments, this is not mandated under the Migration Act[29].
[26] See generally Minister for Immigration v Lat (2006) 151 FCR 214; [2006] FCAFC 61 at 226 [72]–[73]; see also subsection 5AAA(2) of the Migration Act
[27] subsection 5AAA(4) of the Migration Act
[28] CB 177 at [18]
[29] paragraph 473DC(3)(b) of the Migration Act; Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at 603 [20], [22]
Further, the applicant has not provided sufficient evidence to establish that the Authority’s jurisdiction remained constructively unexercised as a result of third party fraud[30]. Moreover, the Authority considered the applicant’s additional claims put forward in his protection visa interview, as well as his claims regarding the preparation of his statutory declaration, but it found the number and material nature of the inconsistencies between the applicant’s declaration, statement and interview could not be explained by errors on the part of the migration agent[31]. Those findings were open to the Authority for the reasons it gave.
[30] SZFDE v Minister for Immigration (2007) 232 CLR 189; [2007] HCA 35 at 206–7 [52]–[53]
[31] CB 177 at [18]
Compliance with Part 7AA of the Migration Act
For completeness, the Minister submits and I accept that the Authority complied with its procedural fairness obligations in Division 3 of Part 7AA of the Migration Act. In particular, the Authority had regard to the “review material” provided by the Secretary of the Department under s.473CB of the Migration Act. The applicant provided no “new information”[32]. While the Authority did have regard to certain “new information” regarding whether the applicant may have a right to enter and reside in India, the Authority sought this information itself and found for the purposes of s.473DD of the Migration Act that there were exceptional circumstances which justified considering it. The Authority considered, for the purpose of s.473DE(3)(a) of the Migration Act[33], that this was not information specifically about the applicant and was just about a class of persons of which the applicant is a member (ie, people granted refugee status in India). Ultimately, the Authority’s consideration of this new information led it not to be satisfied that the applicant being formerly recognised as a refugee in India and having resided in a refugee camp in India would give rise to an existing and enforceable right to enter and reside in India. It therefore found that s.36(3) of the Migration Act did not apply to the applicant[34].
[32] CB 174 at [3], [5]
[33] CB 174 at [8]
[34] CB 175 at [10]-[11]
I accept that the Authority complied with its procedural fairness obligations in Division 3 of Part 7AA of the Migration Act, which is an exhaustive statement of the natural justice hearing rule in relation to reviews undertaken by the Authority[35]. In those circumstances, the Authority was required to review the delegate’s decision “on the papers”[36].
[35] Section 473DA of the Migration Act; CDR16 v Minister for Immigration & Anor [2016] FCCA 2759 at [34] (Judge Driver); AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12] (Judge Cameron)
[36] Section 473DB of the Migration Act
SZTAL v Minister for Immigration and Border Protection
In the context of complementary protection, the Authority found that the applicant’s experiences on account of his illegal departure would not amount to significant harm[37]. In doing so, the Authority relevantly made findings that there was no “intention” to inflict significant harm[38]. It was open to the Authority to find that the definition of significant harm was not satisfied in the absence of an “actual subjective intention”[39].
[37] CB 182-183 at [45]-[46]
[38] CB 182-183 at [46]
[39] SZTAL v Minister for Immigration [2017] HCA 34 at [27]
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 October 2017
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