CMC18 v Minister for Home Affairs
[2019] FCCA 1437
•28 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMC18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1437 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well founded – unparticularised claims of error – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA, 473CB, 473DA, 473DB, 473DC, 473GA, 473GB, 477 |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 Carrascalao v Minister for Immigration (2017) 252 FCR 352 Minister for Immigration v SZMDS (2010) 240 CLR 611 Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 |
| Applicant: | CMC18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 256 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 May 2019 |
| Delivered at: | Perth |
| Delivered on: | 28 May 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Ladhams of Australian Government Solicitor |
ORDERS
The application filed on 14 May 2018 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 256 of 2018
| CMC18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 16 April 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Backgrounds facts relating to this matter are set out conveniently in the Minister’s submissions filed on 6 May 2019.
Chronology
The applicant is a citizen of Sri Lanka who arrived in Australia at Christmas Island on 8 June 2013 and is an unauthorised maritime arrival.[1]
[1] Court Book (CB) 14, 16, 20, 74, 92, 176.
On 19 July 2016 the applicant was notified by the Minister’s Department that the Minister had exercised the power under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to lift the statutory bar and allow the applicant to make a valid application for a protection visa.[2]
[2] CB 25-29.
On 6 April 2017 the applicant applied for a protection visa with the assistance of a migration agent.[3] A statement of the applicant,[4] submissions,[5] and news articles,[6] amongst other documents,[7] were provided to the Minister’s Department as part of the visa application.
[3] CB 51-93.
[4] CB 94-100.
[5] CB 32-50.
[6] CB 115-121.
[7] CB 101-114.
On 7 February 2018 the applicant attended an interview before a delegate of the Minister.[8]
[8] CB 149, 169.
On 6 March 2018 the delegate refused to grant the applicant a protection visa.[9]
[9] CB 176-191.
On 14 March 2018 the delegate’s decision was referred to the Authority in accordance with s.473CA of the Migration Act.[10] The applicant did not provide any submissions or new information to the Authority.
[10] CB 194.
On 16 April 2018 the Authority affirmed the delegate’s decision to refuse to grant the applicant a protection visa.[11]
[11] CB 214-227.
On 3 May 2018 (within the 35 days provided in s.477 of the Migration Act) the applicant lodged an application for judicial review of the Authority’s decision by this Court. For some reason unexplained the application was not filed until 14 May 2018.
Protection claims
The applicant’s claims are as follows:
a)the applicant has an imputed anti-government and pro-Liberation Tigers of Tamil Eelam (LTTE) political opinion on the basis of his parents’ past support of the LTTE, his sister being a LTTE combatant and reaching the rank of lieutenant before her death in 1992, being a Tamil male, his former residence in an LTTE controlled area and his prolonged residence in India as a Sri Lankan refugee;[12]
b)the applicant will face harm as a result of being a failed Tamil asylum seeker;[13] and
c)the applicant will face harm as a Tamil from the north of Sri Lanka, particularly given that he has an Indian Tamil accent.[14]
[12] CB 13, 14, 33, 216 [5].
[13] CB 33, 34-35, 36, 97 [25], 98 [34], 99 [49].
[14] CB 36, 99 [40].
Authority decision
The Authority had regard to the material given by the Secretary under s.473CB of the Migration Act, and no further information was obtained or received.[15]
[15] [3]-[4].
The Authority did not accept that the applicant’s parents were supporters of the LTTE because the applicant’s evidence on this aspect of his claims was vague and unsubstantiated, particularly as the applicant was unable to identify what the nature of the support was or when his parents provided the support.[16]
[16] [14].
The Authority accepted that the applicant supported the LTTE by providing the group with food during the time he leased land in Mullativu.[17] The Authority further accepted that the applicant’s sister joined the LTTE, that the applicant and his family became known as an “LTTE family”, and that his sister was killed in battle in 1992 after reaching the rank of lieutenant.[18]
[17] [15].
[18] [17]-[18].
The Authority accepted that the applicant is a monolingual Tamil who may face some difficulties in communicating on return to Sri Lanka, but was not satisfied that any such difficulties would give rise to a real chance of harm.[19] The Authority also accepted that the applicant may experience difficulties establishing himself in Sri Lanka as a consequence of not having lived there since 2006, his lack of formal qualifications and lack of home or land ownership in Sri Lanka. However, the Authority was not satisfied that the applicant would not be able to earn a livelihood sufficient to sustain himself given that he was of working age, previously held employment and had demonstrated skills and experience in finding employment. Nor was the Authority satisfied that not having a home or land, or any other difficulties in establishing himself or continuing to live in Sri Lanka, would amount to serious harm.[20]
[19] [30].
[20] [32].
The Authority considered that there was credible evidence of serious harm being perpetrated against certain Tamils associated with, or perceived to be associated with, the LTTE by the Sri Lankan authorities. However, it was not satisfied that the applicant’s past or present circumstances would lead to a real chance of any adverse interest or consequence. The applicant’s support to the LTTE and his sister’s death occurred over 25 years ago, and the applicant departed Sri Lanka at least 11 years ago, at which point he was not of interest to the Sri Lankan authorities. The Authority also noted that the applicant had not claimed that he had been sought by the Sri Lankan authorities or others since his departure from Sri Lanka.[21]
[21] [22], [24], [34]-[35].
The Authority was not satisfied that the applicant would be imputed with any type of profile arising from his ethnicity, past circumstances including his support of the LTTE and his sister’s role, the applicant’s prolonged residence in India as a Sri Lankan refugee, his Indian Tamil accent, former residence in LTTE controlled areas or his past interactions with the Sri Lankan authorities on return to Sri Lanka. The Authority was not satisfied that the applicant faced a real chance of any harm for these reasons.[22]
[22] [38].
The Authority was not satisfied that the applicant would face a real chance of serious harm as a Tamil asylum seeker, who departed legally and who is returning from Australia, on his return to Sri Lanka.[23]
[23] [43]-[44].
The Authority concluded that the applicant did not meet the requirements of s.36(2)(a) of the Migration Act.[24]
[24] [45].
The Authority, in its complementary protection assessment, concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm for substantially similar reasons.[25]
[25] [51].
The present proceedings
As noted above, these proceedings began with a show cause application filed on 14 May 2018. The applicant continues to rely upon that application. There are three unparticularised grounds in it:
1.Jurisdicational error.
2.Bias based on conscious or unconscious prejudie by ignoring revelent materials.
3.Identifying a wrong issue on a wrong question.
(errors in original)
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book lodged on 7 August 2018.
At today’s hearing, after introductory matters were dealt with, the applicant handed up a written submission. He undertook to have it filed electronically. The applicant identifies himself and recounts his experiences in Sri Lanka. He articulates his fear of returning there. He asserts that the Authority did not examine his personal situation in Sri Lanka. The submission, substantially, is an appeal to the merits of the Authority decision. Those merits are beyond the scope of this proceeding.
There is no substance to the assertion that the Authority failed to examine the applicant’s personal situation. The Authority decision is a comprehensive analysis of the applicant’s claims, which the Authority substantially accepted. The applicant’s problem is that his circumstances did not establish in the mind of the Authority a well-founded fear of persecution or a real risk of significant harm. Those conclusions were open to the Authority for the reasons it gave.
The applicant’s grounds of review in the application are wholly unparticularised. The applicant declined the opportunity to make oral submissions in support of his case.
The Minister’s submissions deal with the applicant’s grounds. I agree with those submissions.
Ground 1
By this ground, the applicant makes a broad and unparticularised assertion of jurisdictional error.
Notwithstanding the difficulties in responding to this ground, the Minister submits and I accept that no jurisdictional error is evident in the Authority’s reasons. None of the types of jurisdictional error that are frequently alleged in migration matters arise in the present matter, for the reasons discussed below.[26]
[26] The types of jurisdictional error alleged in Grounds 2 and 3 are addressed in the discussions on those grounds.
There is nothing illogical, irrational or unreasonable in the Authority’s reasons
The Authority provided logical and rational reasons for its findings and its ultimate conclusion that the applicant did not meet the statutory criteria for the grant of a protection visa. The logical reasons for its findings took into account country information and the applicant’s evidence. Where the Authority did not accept the applicant’s evidence, it provided reasons for its findings.
It cannot be said that the Authority formed a view that no rational or logical decision maker could have arrived at on the same evidence.[27] This is true both in respect of the end result and the fact finding which led to the end result.[28]
[27] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130].
[28] ARG15 v Minister for Immigration (2016) 250 FCR 109 at [47] and [83].
Further, the Authority did not unreasonably exercise a statutory power in the sense that it lacked an evident and intelligible justification.[29]
[29] Minister for Immigration v Li (2013) 249 CLR 332 at [76].
The Authority afforded the applicant the procedural fairness owed to him under the Migration Act
Section 473DA(1) of the Migration Act provides that Division 3 of Part 7AA, along with s.473GA and s.473GB,[30] comprise an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. The Authority has complied with the provisions in Division 3 of Part 7AA. Relevantly:
a)as required by s.473DB(1), the Authority conducted the review on the papers, taking into account the material provided to it by the Secretary under s.473CB;[31] and
b)the Authority did not get, request or accept any new information.[32] Pursuant to s.473DC(2), it was not under any duty to do so. The applicant also did not provide the Authority with any new information.
[30] Sections 473GA and 473GB have no application in the present case.
[31] See CB 215 [3].
[32] See CB 215 [4].
The Authority did not rely on any irrelevant material in reaching its decision
The Authority considered the evidence and claims advanced by the applicant and relevant country information and other documents obtained by the delegate. The Authority did not rely on any material that could be said to be irrelevant to the issues it was required to consider.
Ground 1 must fail.
Ground 2
Ground 2 appears to comprise two elements, namely, that the Authority was biased and that the Authority ignored relevant material.
Bias
Any allegation of bias must be distinctly made and clearly proved.[33] General assertions of bias, such as that made by the applicant, are not sufficient.
[33] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69].
In any event, the applicant is unable to establish any actual or apprehended bias on the part of the Authority in this matter.
For the applicant to establish actual bias, he must show that the Authority’s state of mind, in exercising the discretion, was so committed to a conclusion already formed as to be incapable of alteration, regardless of the evidence or arguments presented.[34]
[34] Jia Legeng at [71]-[72].
For the applicant to establish apprehended bias, he must demonstrate that the Authority behaved in a way which might lead the hypothetical fair-minded layperson to reasonably apprehend that the decision maker might not have brought an impartial mind to making the decision.[35]
[35] SZRUI v Minister for Immigration [2013] FCAFC 80 at [2].
The Authority carefully and independently assessed the applicant’s claims, as it was required to do, and its rejection of some of the applicant’s claims does not indicate bias. There is nothing to indicate any pre-judgment on the part of the Authority. As the Authority was not satisfied that the criteria for the grant of the visa had been met, the appropriate order for the Authority was to affirm the decision under review.[36] Accordingly, the Authority’s decision to affirm the delegate’s decision to refuse the applicant a protection visa does not indicate bias.
[36] Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 at [17].
Ignoring relevant material
The applicant has not identified which material he claims the Authority has ignored. The Minister submits that the Authority has considered all relevant claims and evidence advanced by the applicant.
The Authority considered the applicant’s protection claims relating to his imputed pro-LTTE political opinion for the various reasons claimed, his Tamil ethnicity and as a failed asylum seeker. The Authority also considered whether the applicant may face a real chance of harm as a result of his Hindu faith. The Authority’s reasons demonstrate that the Authority was engaged in an active intellectual process directed at the protection visa criteria.[37]
[37] Carrascalao v Minister for Immigration (2017) 252 FCR 352 at [45]-[46].
The Authority was not required to refer to every piece of evidence and every contention made by the applicant.[38]
[38] Carrascalao at [45]; Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at [46].
In any event, it is apparent that the Authority had regard to all relevant evidence provided by the applicant, including his interview before the delegate for the purpose of discussing his protection claims,[39] his sister’s bravery salutation,[40] the applicant’s passport,[41] the applicant’s identity card,[42] various documents evidencing the applicant’s status as a Sri Lankan refugee by the Government of Tamil Nadu in India,[43] and the applicant’s former representative’s submission to the Minister’s Department.[44]
[39] See, eg, CB 217 [12], 219 [31], 220 [36].
[40] See, eg, CB 218 [18].
[41] See, eg, CB 218 [20].
[42] See, eg, CB 218 [21].
[43] See, eg, CB 218 [23].
[44] See, eg, CB 219 [27].
Accordingly, this ground must fail as the applicant has not established actual or apprehended bias nor has he shown that the Authority ignored relevant material.
Ground 3
The applicant has not specified what wrong issue the Authority has identified in its decision or what wrong question the Authority has asked in reaching its decision.
In reviewing the delegate’s decision, the Authority was required to consider whether the applicant met the criteria in s.36(2)(a) and s.36(2)(aa) of the Migration Act. The Authority’s approach to these subsections was entirely orthodox and it did not identify a wrong issue or ask itself the wrong question. In particular:
a)in considering whether the applicant was a refugee for the purposes of s.36(2)(a), the Authority appropriately considered and applied the meaning of “refugee” in s.5H and the meaning of “well-founded fear of persecution” in s.5J of the Migration Act; and
b)in considering whether the applicant met the complementary protection criteria in s.36(2)(aa), the Authority correctly identified and applied the definition of “significant harm” in s.36(2A) of the Migration Act.
This ground cannot succeed.
Conclusion
I conclude that the applicant is unable to demonstrate that the decision of the Authority was affected by any jurisdictional error. The decision is therefore a privative clause decision, and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs. The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 June 2019
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Jurisdiction
-
Natural Justice
-
Procedural Fairness
0
11
2