CLL16 v Minister for Immigration

[2017] FCCA 491

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLL16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 491

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – whether the Authority failed to consider an integer of the applicant’s claims – whether the Authority was bound to present new information to the applicant for comment – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 46A, 473CB, 473DC, 473DD, 473DE, 473GB, 476.

Immigrants and Emigrants Act 1949 (Sri Lanka)

Cases cited:

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

Applicant: CLL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2368 of 2016

Judgment of: Judge Street

Hearing date: 16 March 2017

Date of Last Submission: 16 March 2017

Delivered at: Sydney

Delivered on: 16 March 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2368 of 2016

CLL16

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”) under Part 7AA of the Act on 8 August 2016, affirming a decision of the delegate not to grant the applicant a protection visa.

The Applicant’s Claims and History

1. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. In summary, the applicant claimed to fear harm on return to Sri Lanka for reasons of his ethnicity, reputed illegal connection to the LTTE, his political opinion, because of his perceived wealth, as a failed asylum seeker, being a Sri Lankan who did not pay extortion money to the Karuna group, or as someone who departed Sri Lanka illegally.

2. The applicant was found to be a Tamil and his religion is Hindu. In February 2008, the applicant travelled to Qatar by air. The applicant resided in an “industrial area” between February 2008 and August 2010. The applicant returned to Batticaloa between August and November 2010. The applicant again resided at an “industrial area” from November 2010 to November 2011. Then the applicant resided at Batticaloa until his illegal departure by sea. The applicant entered Australia in September 2012.

3. On 7 September 2015, the Minister wrote to the applicant to advise that the Minister had exercised his power under s.46A to permit the applicant to apply for a Safe Haven Enterprise (subclass 790) visa. On 10 November 2015, the applicant applied for a Safe Haven Enterprise visa. The applicant provided a statement on 16 August 2013, in which he set out his claims for protection, some of which had been included in his application form.

The Delegate’s Decision

1. The applicant participated in an interview with the delegate on 16 March 2016. The delegate accepted the applicant was targeted and harmed, extorted, and abducted, between 2008 and 2012 in Sri Lanka, and that the applicant supported a politician for the TNA party. The delegate did not accept the applicant’s family had been approached by the Karuna Group members in 2015 as the applicant claimed. The delegate did not accept that the applicant’s brother was beaten in 2015 as claimed.

2. The delegate had been unable to locate any credible or specific information or reporting to indicate that persons currently or previously aligned to the TMVP or the Karuna Group, being involved in government-supported or paramilitary criminal activity in the period since the presidential election in January 2015. The delegate had found no credible or specific information was found in relation to extortion by TMVP members since the change of president in January 2015.

3. The delegate found while the applicant had been subjected to serious harm in the past, the delegate did not accept there was a greater than remote chance that he would suffer serious harm in the foreseeable future.

4. The delegate found that the likelihood that the applicant would be pursued and seriously harmed by the Karuna Group because he did not pay extortion money to be a remote one. The delegate was not satisfied there is a real chance the applicant will be pursued and seriously harmed by any persons in Sri Lanka on account of his support of the TNA. The delegate found that it was unlikely that the applicant would be considered to be a former LTTE associate. The delegate found it highly unlikely that the applicant has subsequently been suspected or considered to be an LTTE associate.

5. The delegate was not satisfied that the applicant faces a real chance of suffering serious harm in the reasonably foreseeable future for reason of his Tamil race or having an imputed pro-LTTE political opinion. The delegate was not satisfied there was a real chance the applicant would be perceived to be wealthy and suffer serious harm as a result. Having considered the applicant’s claims cumulatively, the delegate was not satisfied the applicant faces a real chance of suffering serious harm in the reasonably foreseeable future for one or more of the reasons in s.5J(1)(a) of the Act.

6. The delegate was not satisfied there was 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 was not a refugee as defined in s.5H and that the applicant failed to meet the criteria under s.36(2)(a) of the Act.

7. The delegate found it was likely the applicant would be questioned, briefly detained, and fined as a result of departing Sri Lanka illegally. The delegate was satisfied that the short period of detention for processing of the charges and fines does not meet the definition of cruel, inhumane, or degrading treatment or punishment. The delegate was not satisfied there was a real risk the applicant would suffer significant harm on return to Sri Lanka for that reason.

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

9. The delegate found that the applicant was not an excluded fast track applicant.  

The Authority’s Decision

1. On 16 June 2016, the Authority wrote to the applicant informing that the matter had been referred to the Authority for review. The Authority identified that the Department had provided the Authority with all documents considered relevant to the applicant’s case and that included the material that was provided by the applicant to the Department officer before the Department’s decision to refuse a protection visa. The letter indicated that the Authority would proceed to make a decision on the case on the basis of the information sent to the Authority by the Department unless the Authority decided to consider new information.

2. The letter identified that the Authority would only consider new information in limited circumstances. The letter included an explanation in relation to the review and new information and provided an opportunity to put submissions. By email dated 19 July 2016, the applicant provided submissions and further information to the Authority, which relevantly included in the conclusion of the submissions the assertion that the applicant’s wife had told him never to come back to Sri Lanka as there is no place that the applicant can hide in Sri Lanka, and that it was a very small country controlled by the CID, TID, and armed Tamil groups.

3. The Authority, in its decision, identified the applicant’s background. The Authority identified having regard to the material referred to it under s.473CB of the Act. The Authority referred to the submission provided by the applicant to the Authority as raising a number of new claims, which the Authority set out. The Authority identified that the applicant explained he did not mention those matters because he was in fear and he feared that he would be deported back to Sri Lanka, and that he had now decided he had no option but telling the truth.

4. The Authority considered this statement and found that, to the extent that it expands on the current claims relating to the Karuna Group, they are matters that the Authority considered. The Authority found that the other matters were new claims and new information that were not previously before the Minister. The Authority took into account the applicant’s claims that he was fearful and referred to the process before the delegate, during which he asked for confirmation that no information would be released.

5. The delegate confirmed that only the applicant’s biometrics would be released and that the specific claims would not be provided. The delegate also reminded the applicant of the importance of being truthful in his account and not providing false statements. The Authority referred to the applicant taking an oath in relation to the information provided at the interview, and that, at the interview, the applicant was given multiple opportunities to expand on his claims at the interview.

6. Based on the applicant’s comments in the statement, the Authority was not satisfied that the information could not have been provided to the Minister before the decision was made. The Authority was not satisfied that the information was credible, personal information which was not previously known. The Authority was not satisfied that the requirements of s.473DD(b) were met. In those circumstances, the Authority found that there were not exceptional circumstances to justify considering the new information.

Refugees Convention Grounds

1. The Authority set out the applicant’s claims advanced before the Authority. The Authority was not satisfied that the applicant faced a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil ethnicity or being a Tamil from the East of Sri Lanka or for any actual or imputed political opinion or connection to the LTTE.

2. The Authority made reference to the Karuna Group. The Authority did accept that his family were targeted in the past but did not accept the more recent claims.

3. The Authority found there is more than a remote chance that the applicant would be again targeted for extortion and mistreatment amounting to serious harm by elements of the Karuna Group if he were returned to his home area in the East. The Authority made reference to s.5J(1)(c) of the Act, requiring that a real chance of persecution must relate to all areas of the receiving country. The Authority made reference to the fact that, although the Authority accepted there was a real chance of the applicant getting harmed in his home area, for reasons provided, the Authority was not satisfied there was a real chance the applicant will face persecution outside his home area in the East of Sri Lanka.

4. The Authority made reference to information supporting activity by the Karuna and TMVP in the East, but there being no information to indicate that the group has control or influence outside those areas, and identified country information that was the same country information as referred to by the delegate. The Authority found that their interest in the applicant is opportunistic and criminally motivated due to his perceived wealth and, being outside of his home area, it would not arise.

5. The Authority was not satisfied that there was any other group that would have interest in harming the applicant on that basis. The Authority found that the essential and significant reason for the harm suffered by the applicant and his family was his perceived wealth and not his or his family’s political involvement with the TNA. The Authority was not satisfied the applicant’s political involvement was of such a level or interest to the Karuna Group that they or any other group would seek to find him or harm him outside his home area, such as in a major city like Colombo. The Authority was satisfied that the applicant would be beyond the reach or interest of the Karuna Group outside his home area in the East. Accordingly, the Authority did not accept that there was a real chance of the applicant being seriously harmed on this basis in all areas of Sri Lanka.

6. The Authority did not accept that the applicant would face a real chance of harm on the basis of his pro-TNA political opinion, even when considering the unlikely event that he did again become active in election politics.

7. The Authority then turned to the applicant’s fears of harms by reason of his illegal departure and being a failed asylum seeker. The Authority found the applicant had no actual or imputed connection to the LTTE and there was no country information before the Authority that indicates that being a Tamil from the East or North would impute a person to hold an LTTE opinion or place them at risk on that basis.

8. The Authority was satisfied the applicant would not face a real chance of harm on the basis that he is an asylum seeker or from any profile or  imputed political opinion that could arise from having sought asylum or because he is a Tamil male from the East.  The Authority was not satisfied there is a real chance that the applicant would face serious harm on re-entry to Sri Lanka on the basis of being a failed Tamil asylum seeker.

9. The Authority made reference to the application of the Immigrants and Emigrants Act 1949 (Sri Lanka) (the “I&E Act”) and accepted that the applicant may be questioned by police on return and that the applicant could remain in police custody at the CID office for up to 24 hours and, if a magistrate was not available because of a weekend or public holiday, the applicant may be held at a nearby prison.

10. The Authority found that the applicant would not face any chance of imprisonment, and it was likely that the applicant would be fined. The Authority found that the fine could be paid by instalments and would not cause the applicant any economic hardship or otherwise threaten his capacity to subsist. The Authority found that any fine imposed or the requirement for any surety guarantee would not of itself constitute serious harm for the applicant. The Authority found that any questioning and detention experienced by the applicant would be brief and would not constitute serious harm as defined in the Act.

11. The Authority was satisfied that the provision of the penalties of the I&E Act are laws of general application that apply to all Sri Lankans equally. The Authority found that the I&E Act was not discriminatory on its terms and that the law was not applied in a discriminatory manner or selectively enforced. The Authority was not satisfied there was a real chance the applicant would suffer serious harm on return to Sri Lanka as a failed asylum seeker, or as a person who left Sri Lanka illegally.

12. The Authority was not satisfied that any process of a penalty the applicant may face on return to Sri Lanka because of his illegal departure would constitute persecution for purposes of the Act.

13. The Authority made reference, having considered the applicant’s claim, singly and cumulatively, and found that the applicant would not face a real chance of serious harm on return to Sri Lanka on the basis of his ethnicity, any related particular social group, any political group, any actual or imputed connection to the LTTE, as a failed asylum seeker, or as someone who left Sri Lanka illegally.

14. The Authority found that, outside the applicant’s home area in the East, the Authority was not satisfied there was a real chance the applicant would be harmed from the Karuna Group, the government, or any other security or other authority for reasons of his wealth, support for the TNA, or any other reason. The Authority found the applicant did not meet the requirements of s.5J(1)(b) or (c) of the Act. The Authority found the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and that the applicant did not satisfy the criterion in s.36(2)(a) of the Act.

Complementary Protection

1. The Authority then turned to the issue of complementary protection. The Authority made reference to s.36(2)(aa) of the Act. The Authority found that it would be reasonable for the applicant to relocate to an area outside his home area where there would not be a real risk that he will suffer significant harm, such as Colombo. The Authority expressly referred to the delegate discussing the issue of relocation with the applicant and whether he could relocate to Colombo. The Authority referred to the fact that the applicant has lived in Colombo, and there is no impediment for him moving there, including with his wife and younger brother.

2. The Authority referred to the Constitution of Sri Lanka allowing citizens freedom of movement and the country information that internal relocation options can be limited by absence of family connections or lack of financial resources. The Authority made reference to the applicant’s claim that he did not have special resources to relocate and noted that the applicant continues to have family connections in Sri Lanka, is educated, has considerable work experience and a demonstrated ability to make a good living, has the support of his family, and has experience in living in Colombo.

3. The Authority accepted that, whilst the move may be challenging, the Authority did not accept that the applicant did not have resources or practical ability to do so. The Authority found, having regard to all the circumstances and current country information, that the Authority was satisfied that it would be reasonable for the applicant to relocate to Colombo to avoid significant harm he may encounter if he were to return to live in his home village in the East. The Authority found that there are not substantial grounds for believing that as a necessary foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm.

4. The Authority found the applicant did not meet the criterion under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Proceedings Before this Court

1. On 24 November 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

2. The grounds of the application are as follows.

   1. The Authority breached s473DC of the Migration Act in failing to put the new information regarding relocation to the applicant for comment.

   Particulars

   a. At [85] of the delegate's decision, the delegate found that the likelihood that the applicant will be pursued and seriously harmed by the Karuna Group for this reason to be a remote one;

   b. The delegate did not make a finding on relocation under s5J(l)(c);

   c. At [38] and [41] the Authority found that if the applicant were to return to his home area in the East, there was a more than remote chance that the applicant would be again targeted for extortion and mistreatment amounting to serious harm by elements of the Karuna Group;

   d. At [39] the Authority found that while there is a real chance of the applicant being harmed in his home area, for the following reasons, I am not satisfied there is a real chance the applicant will face persecution outside of his home area in the East of Sri Lanka;

   e. At [40] the Authority relies on country information relating to the activities of the Karuna/TMVP;

   f. The applicant has not had the opportunity to make any comments on the issue on relocation to the Authority.

   2. The Authority erred in failing to consider all the integers of the claims in relation to the applicant's membership of a particular social group.

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error.

2. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that, in summary, this meant the Court was considering whether the Authority’s decision was unlawful or whether the Authority’s decision was unfair. The Court explained that, if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that, if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed.

3. The Court explained that it would have identified the evidence and then hear submissions from the applicant as to why the Authority’s decision was unlawful or unfair in support of the grounds in the application, and then hear submissions from the barrister 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 sought to advance submissions in support of ground 1 that he was not given an opportunity to address the issue of relocation.

4. The applicant maintained that there was information he wished to put in response to that issue. In relation to the second ground, the applicant put submissions that he would be looked on as a rich person, and it was for that reason he would be at risk on return to Sri Lanka. In relation to ground 1, the information referred to by the Authority in relation to its decision concerning relocation was information that was before the delegate. The Authority did not take into account new information that would have enlivened an obligation under s.473DE.

5. Further, this is a case where the issue of relocation was raised by the delegate at the time of the interview with the applicant. Further, the applicant, in response to the letter from the Authority identifying the nature of the review and the information that could be provided, put submissions that relevantly asserted that there is no place he could hide in Sri Lanka.

6. I accept the first respondent’s submission in relation to the nature of the review under Part 7AA and, in particular, s.473DA being different to that found in Part 7 Division 4.

7. Under Part 7AA, it was open to the Authority to make findings different from the findings made by the delegate. Further, the issue of relocation had, as has been identified, been raised by the delegate with the applicant. I accept the first respondent’s submissions that s.473DA? excludes any common law obligation to invite the applicant to respond to adverse findings that the Authority might make on the material before it. Further, to the extent relevant, the Authority complied with the requirements of procedural fairness under Part 7AA by the sending of the letter of 16 June 2016 together with the explanatory material in relation to the limited nature of the new information that could be considered on review and the opportunity to put submissions.

8. Section 473DC(3) is a discretionary power, and there is no substance in the proposition that the failure to exercise the same in the present case gives rise to any jurisdictional error. No case of legal unreasonableness arises in the present case. There is no breach of s.473DC. No jurisdictional error as alleged in ground 1 is made out.

9. In relation to ground 2, the Authority addressed the social groups of the applicant being a failed asylum seeker or a person who illegally left Sri Lanka. The applicant advanced a claim that he personally was a wealthy person by reason by which he had fears. That claim was addressed by the Authority. This is not a case where a social group of wealthy people is a claim that arose on the material that should have been addressed by the Authority. The Authority made findings that were open in relation to the applicant’s claims. On the material before the Authority, those findings cannot be said to lack an evident and intelligible justification.

10. The Authority made adverse findings in relation to the applicant’s fear of harm by reason of his personal wealth. There was no integer of the applicant’s claims that the Authority failed to address. No jurisdictional error is made out by ground 2.

11. Counsel for the First Respondent has properly drawn the Court’s attention to the existence of a certificate in a more present case issued under s.473GB. The material the subject of the certificate is in evidence before this Court, and it is material concerning the identity of the applicant.

12. On the face of the material before the Court, the certificate was valid. Further, given the nature of the review under Part 7AA, this is not a case where the certificate could give rise to any denial of procedural fairness of the kind identified in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1. I accept the first respondent’s submissions that the decision was distinguishable from the present case. Further, on the material before the Court, I am satisfied that the information the subject of the certificate could not possibly have had impacted on the outcome of the review.

13. Accordingly, even if there were found to be some error in relation to the certificate on discretionary grounds, this is a case where relief should be refused. Nothing said by the applicant from the bar table established any jurisdictional error.

14. The application is dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 4 April 2017